                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

                Plaintiff,

        v.                                               Criminal Action No. 17-129 (RDM)

 MARIO A. TAYLOR,

                Defendant.


                             MEMORANDUM OPINION AND ORDER

       Defendant Mario A. Taylor seeks to revoke the magistrate judge’s July 18, 2017 order

directing that Taylor remain in custody pending trial. Dkt. 57. Taylor was arrested during an

eviction conducted at 2547 Elvans Road SE #102, Washington, D.C., on June 1, 2017, which

resulted in the seizure of two handguns, an AR-15 rifle, ammunition for all three weapons, and

two vials that the government alleges contain Phencyclidine (“PCP”). Dkt. 59 at 2–4. He was

charged by indictment with Unlawful Possession with Intent to Distribute a Mixture and

Substance Containing a Detectable Amount of PCP, in violation of 21 U.S.C. § 841(a)(1) &

(b)(1)(C) (Count One); Unlawful Possession of a Firearm and Ammunition by a Person

Convicted of a Crime Punishable by Imprisonment for a Term Exceeding One Year, in violation

of 18 U.S.C. § 922(g)(1) (Count Two); and Using, Carrying, and Possessing a Firearm During a

Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c)(1) (Count Three). Dkt. 1. On July

11, 2017, Taylor was arraigned, and two days later a detention hearing was held. Dkt. 57 at 2;

see also Dkt. 5. After the hearing, the magistrate judge ordered Taylor held without bond,

finding that he had not overcome the presumption—triggered by Counts One and Three of the

indictment—that no combination of conditions could reasonably assure the safety of the
community if he were released, and that, in any event, “detention would be required even had

[Taylor] rebutted the presumption entirely.” Dkt. 5 at 6.

       In light of several developments since his detention hearing, Taylor now moves to revoke

that pretrial detention order. Dkt. 57. The Court finds that Taylor has rebutted the statutory

presumption in favor of detention triggered by the charges in this case and that the government

has failed to show by clear and convincing evidence that no set of conditions exists that would

reasonably assure the safety of the community. Reaching that result requires that the Court

resolve two questions of first impression in this Circuit regarding the meaning of the Bail

Reform Act of 1984, 18 U.S.C. § 3142 et seq. As explained below, the Court concludes that the

second factor of the detention analysis under Section 3142—the weight of the evidence—focuses

on the evidence the government may present at trial and, thus, does not include evidence that the

Court has suppressed. By contrast, the fourth factor under Section 3142—the nature and

seriousness of the danger to any person or the community that would be posed by release—

requires the Court to consider all reliable evidence, including evidence that has been suppressed.

       Applying the factors set forth in the Bail Reform Act and these legal conclusions, the

Court will revoke the order of the magistrate judge and direct that Taylor be released subject to

the conditions set out below.

                                      I. BACKGROUND

       On March 31, 2017, the Superior Court of the District of Columbia issued a writ of

restitution to evict Taylor from his residence at 2547 Elvans Road SE #102, Washington, D.C.

Dkt. 14-1 at 3. The writ was executed on June 1, 2017. As required in the District of Columbia,

the United States Marshals Service effected the eviction, with the assistance of an eviction team

retained by the property owner. At the time the Deputy Marshals arrived at the residence, it was



                                                 2
 
occupied by three men (including Taylor), one woman, and one infant. The Deputy Marshals

directed all of the occupants to leave the apartment, but the adults were subsequently allowed

briefly to return to retrieve valuables, such as cell phones and wallets.

       After approximately forty-five minutes, one of the Deputy Marshals discovered two

loaded rifle magazines (for an AR-15 rifle) under a table in the dining area. Dkt. 18 (64:4–9).

Although the magazines were left on the floor, they were initially obscured by clothing and other

“debris.” Dkt. 48 (22:10–18). Very shortly after the Deputy Marshal discovered the magazines,

the eviction crew discovered two loaded, semi-automatic handguns, ammunition, and two vials

in shoeboxes in one of the bedrooms. At least one of the vials contained a “brownish[,]

yellowish” liquid. Id. (23:6–8). As is standard procedure, the Deputy Marshals contacted the

Metropolitan Police Department’s (“MPD”) Gun Recovery Unit (“GRU”). While waiting for the

GRU to arrive, the Deputy Marshals brought Taylor back into the apartment. One of them

“explained to him that [they had] found contraband, [that they had] found guns and . . . told him

he[] [was] not under arrest but [they would] have to detain him until MPD comes.” Id. (14:6–9).

Taylor said “something to th[e] effect” of “you’re going to charge me anyways because I’m on

the lease,” at which point the Deputy Marshals handcuffed him. Id. (14:10–19).

       After officers from the GRU arrived, the officers inspected the items discovered in the

course of the eviction. Of particular relevance here, Officer Casey Logan examined and smelled

the vials and concluded that they contained PCP. He also examined the rifle magazines,

handguns, and ammunition. While the GRU remained present, moreover, a member of the

eviction crew discovered a soft bag in a closet located just off of the communal living area,

which he brought to Officer Logan’s attention. Officer Logan entered the closet, examined the

bag, felt what seemed to be a rifle, and opened the bag. Inside, he discovered an AR-15, a type



                                                  3
 
of semi-automatic rifle. According to Officer Logan, he asked Taylor—who remained

handcuffed—“about the illegal items recovered from his home,” and Taylor responded “that

everything recovered from the residence belong[ed] to him.” Dkt. 61 at 2 (MPD Arrest Form

(June 1, 2017)); see also Dkt. 49 (25:9–23) (quoting grand jury testimony). Taylor’s counsel

denies that he made this statement, but the defense has yet to offer any evidence or to make a

proffer in support of that contention. According to the government, the liquid contained in the

vials later tested positive for PCP at a Drug Enforcement Agency (“DEA”) laboratory located in

Northern Virginia.

       Taylor was indicted on June 29, 2017, and arraigned on July 11, 2017. After a detention

hearing, the magistrate judge found “by clear and convincing evidence that no condition or

combination of conditions exist that would reasonably assure the safety of any other person or

the community if [Taylor] were released,” and he accordingly granted the government’s motion

for pretrial detention. Dkt. 5 at 9. Taylor did not, at that time, challenge that order under 18

U.S.C. § 3145(b), which grants persons detained by order of a magistrate judge the right to seek

review by the district court. He now contends, however, that several intervening events warrant

reexamination of the magistrate judge’s decision. Among other things, Taylor points to the

following developments and factual clarifications.

       First, at the initial detention hearing, the government relied extensively on Officer’s

Logan’s assertion that Taylor admitted that the guns and drugs belonged to him. Dkt. 3 at 5;

Dkt. 5 at 7. The government has now conceded, however, that the statements made by Taylor in

response to Officer Logan’s questions must be suppressed at least for purposes of trial because

he was in custody and not advised of his Miranda rights. Dkt. 18 (11:1–12:14); Minute Entry

(Dec. 8, 2017).



                                                  4
 
       Second, Taylor also moved to suppress the physical evidence found in the apartment—

that is, the guns, magazines, ammunition, and vials of “brownish[,] yellowish” liquid. Although

the Court denied that motion, additional evidence arguably relevant to the present motion came

to light in the course of the suppression hearing. For example, although the magistrate judge

concluded, based on Officer Logan’s grand jury testimony, that the handguns, ammunition, and

purported PCP were recovered from the “main bedroom” of a two-bedroom apartment, Dkt. 5 at

2, testimony of multiple law enforcement officers established that the apartment had three

bedrooms, and the government has not made any further suggestion that a one of the bedrooms

was the “main bedroom.” The Deputy Marshal supervising the eviction crew, moreover,

testified that when Taylor was allowed to retrieve personal items from the apartment, he did not

enter the bedroom where the shoeboxes containing contraband were discovered. Dkt. 48 (12:15–

22). Instead, he entered a bedroom on the other side of the hallway and “grabbed . . . [a]

cellphone, cellphone charger, [and] . . . a wallet.” Id. (13:1–2). The government also presented

photographic evidence that the bedroom in which the shoeboxes were found had the name

“Veandre” written on one wall. See Dkt. 17 (describing government’s photographic exhibits).

Further evidence indicated that one of the other occupants present at the residence at the time the

Deputy Marshals arrived was named Veandre and that a man identified as Veandre Purvis was

overheard speaking to Taylor while the eviction was taking place. See Dkt. 44-1. Purvis, in

particular, was overheard “asking why . . . Taylor had not told him that he was being evicted and

was behind on his rent.” Dkt. 44-1 at 1. A Deputy Marshal also testified that one of the adult

occupants of the residence other than Taylor retrieved personal items from the bedroom where

the shoeboxes were discovered and where “Veandre” was written on the wall. The Deputy




                                                 5
 
Marshal did not indicate whether that individual was the same individual who was later

identified as Veandre Purvis.

       Third, after the jury was selected, but before it was sworn, Taylor’s counsel notified the

Court of potentially exculpatory information regarding misconduct by employees of the DEA lab

where the substance that the government contends is a mixture of PCP and a precursor chemical

was tested. Dkt. 57 at 5–6. According to Taylor’s counsel, two chemists have been “charged

with criminal offenses including embezzlement and possession of controlled substances.” Id.

Defense counsel further suggested that there existed “reason to believe that this conduct may

have impacted the integrity of testing conducted at the lab even if neither of the[] chemists was

the lead chemist who would be called to testify in . . . Taylor’s case.” Id. at 6. As a result of this

late-breaking development, the Court continued the trial to permit the parties time to investigate

the matter. See Minute Entry (Dec. 14, 2017).

       That investigation has, as of yet, been inconclusive. According to the government, one of

the DEA chemists identified by Taylor’s counsel was arrested on August 30, 2017, and charged

under Virginia law with two counts of felony possession of oxycodone and two counts of

embezzlement for purportedly obtaining oxycodone from the DEA lab’s “reference materials”

without authorization. Dkt. 62 at 1. She pleaded guilty to misdemeanor embezzlement on

November 27, 2017. Id. Similar charges apparently remain pending against the other DEA

employee, a DEA research chemist. The government asserts that its preliminary review indicates

that neither of the allegedly offending DEA employees was assigned to Taylor’s case or would

have had access to the locked box that contained the vials found in Taylor’s apartment. That

review, however, is not yet complete. Taylor, in turn, is still waiting to receive potentially

relevant information and assert that, regardless of what that evidence may ultimately show, the



                                                  6
 
government should have disclosed the arrest of the DEA employees many weeks earlier. He

argues that the Court should consider that delay—and the ensuring delay in the trial date—in

evaluating whether to revoke the magistrate court’s detention order.

       The Court held a hearing on the motion to revoke the magistrate judge’s detention order

on December 21, 2017, and took the motion under advisement. Trial is currently scheduled to

commence on January 29, 2018.

                                    II. LEGAL STANDARD

       Under the Bail Reform Act of 1984, 18 U.S.C. § 3142 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). Here, the magistrate judge concluded that Taylor does not present a risk of flight.

The Court agrees with the magistrate judge’s reasoning on this point, and adopts his

corresponding conclusion. The Court thus need consider only whether any “condition or

combination of conditions will reasonably assure . . . the safety of any other person and the

community.” That prong of the pretrial detention standard requires “clear and convincing

evidence” of dangerousness. 18 U.S.C. § 3142(f). “The default position of the law, therefore, is

that a defendant should be released pending trial.” United States v. Stone, 608 F.3d 939, 945 (6th

Cir. 2010).

       “That default is modified, however, for certain[] particularly dangerous defendants.” Id.

In particular, 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,



                                                  7
 
including a crime carrying a maximum term of imprisonment of ten years or more under the

Controlled Substances Act, 21 U.S.C. § 801 et seq., or a violation of 18 U.S.C. 924(c). 18

U.S.C. § 3142(e)(2). For purposes of making that determination, “[a] grand jury indictment, by

itself, establishes probable cause to believe that a defendant committed the crime with which he

is charged.” Stone, 608 F.3d at 945; see also 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.”).

       Once triggered, “the presumption operate[s] at a minimum to impose a burden of

production on the defendant to offer some credible evidence contrary to the statutory

presumption.” United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985). “While the burden

of production may not be heavy,” United States v. Lee, 195 F. Supp. 3d 120, 125 (D.D.C. 2016)

(citations omitted), the defendant must proffer “at least some evidence” or basis to conclude that

the case falls “outside ‘the congressional paradigm’” giving rise to the presumption. Stone, 608

F.3d at 945–46 (quoting United States v. Jessup, 757 F.2d 378, 387 (1st Cir. 1985)); see also

United States v. Bess, 678 F. Supp. 929, 934 (D.D.C. 1988) (finding that the presumption

“represents Congress’s general factual view about the special flight risks and the special risks of

danger to the community presented by defendants who commit the crimes to which it attaches”).

The defendant’s burden, moreover, is only a burden of production; the burden of persuasion

remains with the government throughout the proceeding. United States v. Mercedes, 254 F.3d

433, 436 (2d Cir. 2001); see also Alatishe, 768 F.2d at 371 n.14 (citing Jessup, 757 F.2d 378, but

not deciding the question).

       As then-Judge Breyer explained in an opinion that the D.C. Circuit has described as

“scholarly” and “extremely compelling it its rationale,” Alatishe, 768 F.2d at 371 n.14, the



                                                 8
 
presumption is not a “bursting bubble” that becomes devoid of all force once a defendant has met

his burden of production. Jessup, 757 F.2d at 382. The presumption does “not vanish upon the

introduction of contradicting evidence,” nor does the burden of persuasion shift to the defendant.

Id. at 383 (citation omitted). Rather, even after a defendant carries his burden of persuasion, the

judicial officer must “keep in mind the fact that Congress has found that” those charged with the

specified offenses are likely to pose a danger to the community. Id. at 384. In short, “the

presumption favoring detention does not disappear entirely, but remains a factor to be considered

among those weighed by the district court.” Mercedes, 254 F.3d at 436.

       The Bail Reform Act also specifies the factors that the 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.” 18 U.S.C. § 3142(g). In addition to the rebuttable

presumption, the judicial officer must consider: (1) “the nature and circumstances of the offense

charged, including whether the offense . . . 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.” See id.

        Taylor has moved to revoke the magistrate judge’s detention order under 18 U.S.C.

3145(b), which states that when “a person is ordered detained by a magistrate judge, . . . the

person may file, with the court having original jurisdiction over the offense, a motion for

revocation or amendment of the order.” 18 U.S.C. 3145(b); Dkt. 57. Although the D.C. Circuit

has not decided the issue, those courts considering the question have held 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



                                                  9
 
from the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh

Circuits).

                                         III. ANALYSIS

A.     Probable Cause and Presumption

       As an initial matter, the Court agrees with the magistrate judge’s conclusion that the

presumption that no pretrial release conditions will reasonably assure the safety of the

community was triggered by Taylor’s indictment. Dkt. 5 at 4. Count One of the indictment

charges Taylor with unlawful possession with intent to distribute PCP, which carries a maximum

sentence of twenty years, and Count Three charges him with using, carrying, or possessing a

firearm during a drug trafficking offense. Dkt. 1. Both of these charges fall within the list of

crimes that trigger the presumption, 18 U.S.C. § 3142(f)(1); 18 U.S.C. § 3142(e)(2), and the

indictment is sufficient to establish probable cause for purposes of invoking the presumption,

Smith, 79 F.3d at 1210.

        Unlike the magistrate judge, however, the Court finds that Taylor has now come forward

with sufficient evidence to meet his burden of production, overcoming but not “bursting” the

presumption. He has offered evidence that, if released on high intensity supervision, he could

live with his sister and that his previous employer would offer him work. He stresses that he has

not previously been convicted of a crime of violence. And, most notably, he points to evidence

offered during the suppression hearing that calls into question the connection between him and

much, if not all, of the contraband at issue and that establishes a plausible link between the

contraband and a third party. Although the government points to Officer Logan’s report

indicating that Taylor admitted that the contraband was his, see Dkt. 61 at 2–3 (MPD Arrest

Form (June 1, 2017)), the relevant question—at least for purposes of the presumption—is not

who is correct, but simply whether Taylor has met his burden of production. The Court
                                                 10
 
concludes that he has met that modest burden and that, as a result, “the Court must . . . consider

all of the factors set forth in section 3142(g)” to determine whether detention is warranted. Hunt,

240 F. Supp. 3d at 133.

B.     Section 3142(g) Factors

       1.      Nature and Circumstances of the Offense Charged

       The first factor requires the Court to consider “the nature and circumstances of the

offense charged,” in general, and, in specific, 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.” 18 U.S.C. § 3142(g)(1). As noted above,

even when the presumption created by the charged offenses has been rebutted, it is “incorporated

into the other factors considered by this Court in determining whether to grant a conditional

release and is given substantial weight.” Ali, 793 F. Supp. 2d at 391. Here, the government has

established probable cause to believe that Taylor committed crimes involving firearms and a

controlled substance, and he faces up to twenty years in prison if convicted. The crimes charged

are undeniably serious, and the combination of the distribution of drugs and the illegal

possession of multiple guns (including an assault-style rifle that is illegal in the District of

Columbia), multiple magazines, and scores of rounds of ammunition presents a serious danger to

the community. The first factor thus weighs in favor of detention.

       2.      Weight of the Evidence

       Taylor’s principal argument is that the weight of the evidence has shifted since the

magistrate judge found that pretrial detention was warranted. The magistrate judge’s detention

memorandum noted, for example, that Taylor told Officer Logan “that he had resided at the

apartment since 1994, [that he] had taken over the lease in 2013,” and “that everything recovered

from the apartment was his.” Dkt. 5 at 2. Taylor’s counsel disputes that he made the latter

                                                  11
 
admission. See, e.g., Dkt. 49 (22:17–39:24). There is no dispute, however, that the statement, if

made, occurred while Taylor was in custody and before he received his Miranda warnings, and

the government has now conceded that the statement must therefore be suppressed for purposes

of trial. This has removed one building block of the government’s case. At the same time,

moreover, Taylor contends that the evidence presented at a hearing regarding the suppression of

the recovered contraband affirmatively undercuts the government’s contention that the guns,

ammunition, and drugs were his. According to the defense, that evidence shows that others—

including Veandre Purvis—lived in the apartment; the two handguns, much of the ammunition,

and the two vials of “brownish[,] yellowish” liquid were found in the bedroom on the right side

of the hallway; the name “Veandre” was written on the wall of that bedroom; when allowed to

retrieve certain personal items from the apartment, Taylor went to the bedroom on the other side

of the hallway while another adult (perhaps Purvis) went to the bedroom on the right side; and

Purvis was overheard asking Taylor why he “had not told him that he was being evicted and was

behind on his rent,” Dkt. 44-1 at 1. Taylor contends that these developments substantially

weaken the government’s case and that, as a result, the second factor now weighs in favor of

release.1 Dkt. 57 at 11–13.

       When asked at oral argument how it intended to establish that Taylor possessed the guns,

ammunition, and drugs, the government responded that it will rely on a theory of “joint,

constructive possession,” Motion Hearing Tr. (Rough at 32:2–33:16) (Dec. 21, 2017); that

Taylor was the lessee, the “head of the household,” and was responsible for all of the items


1
  Taylor also argues that the potential Brady violation that occurred when the government failed
to disclose the asserted misconduct at the DEA lab gives rise to an independent ground for
revoking the detention order. Dkt. 57 at 7. The Court cannot conclude on the existing and
undeveloped record, however, that a Brady violation occurred or what, if any, remedy would be
appropriate. The Court, accordingly, will defer consideration of the Brady issue for a later date.

                                                12
 
found during the eviction; that the magazines for the AR-15 were found underneath the table in

the common dining area; and that those magazines fit into the AR-15 found in the common

closet. The government, in addition, contends that, for purposes of determining whether pretrial

detention is warranted, the Court should consider Taylor’s alleged, un-Mirandized admission that

all of the seized contraband belonged to him.

       The parties’ respective positions raise a host of issues. The first question is how the

second Bail Reform Act factor should be applied when evaluating the danger that Taylor’s

release would pose to the community. At least one court has held that the “weight of the

evidence” factor “goes to the weight of the evidence of dangerousness, not the weight of the

evidence of the defendant’s guilt.” Stone, 608 F.3d at 948; see also Hunt, 240 F. Supp. 3d at

134. Other courts, however, have applied the factor to consider the overall strength of the

government’s case. See United States v. Johnson, 212 F. Supp. 3d 126, 130 (D.D.C. 2016); Ali,

793 F. Supp. 2d at 389; Dkt. 5 at 7. And, still other courts have stressed that the Bail Reform Act

“neither requires nor permits a pretrial determination of” the defendant’s guilt or innocence.

United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986).

       In the Court’s view, the correct approach lies somewhere between these poles. The Court

is unconvinced that the “weight of the evidence” factor focuses on the defendant’s danger to the

community (or risk of flight) to the exclusion of any consideration of the strength of the

government’s case. The relevant statutory language does not focus on the evidence of danger to

the community or the evidence of risk of flight; rather, it requires that the judicial officer

consider “the weight of the evidence against the person.” 18 U.S.C. § 3142(g)(2) (emphasis

added). Fairly read, that means the evidence of guilt—not dangerousness or risk of flight. The

fourth factor, moreover, separately requires that the judicial officer consider “the nature and



                                                  13
 
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)(4). Thus, if the second factor were construed to focus exclusively

on the evidence that the defendant poses a danger to the community, the fourth factor would not

only overlap with, but would wholly replicate, the second factor. Reading the second factor to

turn on evidence of dangerousness—as opposed to evidence of guilt of the crimes charged in the

indictment—would therefore run afoul of the canon against superfluity. See Marx v. General

Revenue Corp., 568 U.S. 371, 385–85 (2013); Bilksi v. Kappos, 561 U.S. 593, 607–08 (2010).

       At the same time, however, the Court recognizes that the Bail Reform Act does not

purport to—nor could it, consistent with due process—authorize pretrial detention based simply

on a preliminary assessment of the defendant’s guilt. In sustaining the constitutionality of the

Bail Reform Act, the Supreme Court emphasized that it “narrowly focuses on a particularly acute

problem in which the Government interests are overwhelming”—as applied here, “the

Government must convince a neutral decisionmaker by clear and convincing evidence that no

conditions of release can reasonably assure the safety of the community or any person.” United

States v. Salerno, 481 U.S. 739, 750 (1987). Even overwhelming evidence of guilt would not,

alone, meet that test. The second factor, accordingly, is not entirely divorced from the weight of

the evidence the government will offer at trial, nor is it entirely divorced from the danger the

defendant may pose to the community. The Court must, instead, review the “weight of the

evidence against the” defendant as an indicia of whether any conditions of pretrial release will

reasonably assure the safety of the community. If the government possesses overwhelming

evidence that the defendant is guilty of the crime charged—and the nature of the charged offense

involves a danger to the community—then the second factor will help meet the government’s

burden of persuasion. And, if the government’s evidence is weak—even where the charged



                                                 14
 
offense involves a danger to the community—the government will have a more difficult row to

hoe.

       Determining how this factor applies to suppressed evidence—which might support the

conclusion that the defendant committed the alleged crime but not the conclusion that the

government is likely to prevail at trial—is less clear. The “weight of the evidence” factor dates

back to the statutory predecessor to the Bail Reform Act of 1984, which permitted pretrial

detention where “conditions of release [would] not reasonably assure appearance,” Bail Reform

Act of 1966, Pub. L. No. 89-465, 80 Stat. 214 (then codified at 18 U.S.C. § 3146(b)), but did not

extend to circumstances where the defendant posed a danger to the community. Congress first

experimented with an extension of pretrial detention to cases of dangerousness when it amended

the District of Columbia’s pretrial detention law in 1970. See District of Columbia Court

Reform and Criminal Procedure Act of 1970, Pub. L. 91-358, 84 Stat. 473, 644. In addressing

that provision, the House Report explained that a court’s assessment of the “weight of the

evidence” factor might change based on pre-trial suppression rulings. According to the Report:

       At the pretrial detention hearing, which can normally be expected to occur
       immediately or shortly after arrest, the judicial officer would not be expected to
       make formal rulings on the legality of such matters as searches, seizures, and
       eyewitness identification since at that time in the proceedings, such rulings would
       be premature. Should, however, a defendant succeed in suppressing substantial
       evidence by appropriate motion following a hearing, this might well provide a basis
       for the court to reconsider its earlier ruling. This procedure, it should be observed,
       is no different from that which exists under the Bail Reform Act.

H.R. Rep. No. 91-907, at 184–85 (1970) (emphasis added). The D.C. Court of Appeals relied on

this Report language in rejecting a constitutional challenge to the updated D.C. pretrial detention

law. See United States v. Edwards, 430 A.2d 1321, 1333 (D.C. 1981) (en banc). And, when

Congress extended the concept of detention for dangerousness to federal courts in the Bail

Reform Act of 1984, the Senate Report relied extensively on the D.C. experiment and the D.C.

                                                15
 
Court of Appeals’ decision in crafting the new federal law. See, e.g., S. Rep. No. 98-225, at 8–

13, 22 (1983).

       This history supports the conclusion that, notwithstanding the Bail Reform Act’s

admonition that “[t]he rules concerning the admissibility of evidence in criminal trials do not

apply to the presentation and consideration of information at [a detention] hearing,” 18 U.S.C.

§ 3142(f), courts should disregard, or at least place diminished reliance on, suppressed evidence

in applying the “weight of the evidence” factor. The D.C. Circuit’s decision in United States v.

Peralta, 849 F.2d 625 (D.C. Cir. 1988) (per curiam), further supports that conclusion. There, in

considering the obverse of the present circumstances, the Court of Appeals held that the district

court was authorized to reopen its prior decision granting pretrial release and to order the

defendant detained, based on the district court’s intervening decision declining to suppress

evidence. Id. at 626–27. As the Court of Appeals explained, this “previously nonexistent,

material information . . . increased the likelihood of [the defendant’s] conviction.” Id.; see also

United States v. McCarty, No. CR. 08-513, 2009 WL 5061577, at *4 (D. Haw. Dec. 24, 2009)

(declining to consider suppressed evidence in applying the “weight of the evidence” factor). But

see United States v. Pina-Aboite, 97 Fed. App’x 832, 835 (10th Cir. 2004) (considering

suppressed evidence in applying the “weight of the evidence” factor).

       One might reasonably respond by noting that the link between the strength of the

government’s case and the risk of flight is far easier to discern than the link between what the

government may be able to show at trial and the danger to community. Where the government’s

case has been substantially weakened by a suppression order, the defendant is less likely to flee.

By contrast, the suppression of the evidence says little about whether the defendant, in fact,

poses a danger to the community. None of the materials discussed above, however, draw this



                                                 16
 
distinction. To the contrary, the D.C. Court of Appeals’ decision in Edwards dealt with pretrial

detention aimed at protecting the safety of the community, see 430 A.2d at 1332–33; the two

congressional reports dealt with the extension of pretrial detention to dangerous defendants; and

the D.C. Circuit’s decision in Peralta dealt with a detention order premised on both a risk of

flight and danger to the community, 849 F.2d at 626. Moreover, applying different meanings to

“the weight of the evidence against the” defendant in risk of flight and dangerousness cases

would invite unnecessary confusion, and, because the fourth factor already provides ample room

for the Court to consider the defendant’s dangerousness in light of all of the relevant information,

there is no need to undertake any such contortions. The Court, accordingly, concludes that it

must reevaluate the weight of the evidence given the suppression of Taylor’s alleged admission.

       The significance of the suppression of this statement is bolstered by evidence offered at

the hearing on the suppression of the physical evidence, which casts some doubt on whether

Taylor possessed the contraband found in the bedroom. As noted above, a motion to revoke a

pretrial detention order is not the occasion to adjudicate a defendant’s guilt or innocence, see

United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) (observing that “the bail statute

neither requires nor permits a pretrial determination of guilty”), and that admonition makes good

sense; here, for example, the government’s case turns on a theory of constructive possession, but

the parties have yet meaningfully to address that issue. But, in the unusual circumstances of this

case, the hurdle posed by attempting to assess the merits of the government’s case is also

mitigated by the fact that the Court has already heard extensive testimony from two of the

Deputy Marshals present at the eviction and from one member of the GRU, and has reviewed the

exhibits that the government intends to offer at trial.




                                                  17
 
       Although the nuances of the government’s constructive possession theory have yet to be

presented, there is no doubt that it will be required to prove beyond a reasonable doubt that

Taylor “knew of, and was in a position to exercise dominion and control over, the contraband.”

United States v. Littlejohn, 489 F.3d 1335, 1338 (D.C. Cir. 2007) (quoting United States v.

Byfield, 928 F.2d 1163, 1166 (D.C. Cir. 1991)). It can do so by proving (1) that the contraband

was “found in a home or bedroom where [Taylor] was the sole occupant;” (2) that Taylor shared

his “home or bedroom with other persons” and “there [is] additional evidence linking [him] to

the contraband;” or (3) that “law enforcement encountered [Taylor] in close proximity to the

contraband” and “there is ‘evidence of some other factor,’” such as “‘connection with [the

contraband], proof of motive, a gesture implying control, evasive conduct, or a statement

indicating involvement in the enterprise.’” United States v. Dorman, 860 F.3d 675, 679–80

(D.C. Cir. 2017) (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003)).

Significantly, constructive possession of “contraband found in a shared space in [a] defendant’s

home” can also “be shown . . . where [the contraband] was kept in plain view.” Id. at 681.

       Recognizing that the government has yet to present its case, the evidence produced to

date (excluding the suppressed admission) at least suggests that Taylor was not the sole occupant

of the apartment and that the handguns, some of the ammunition, and the two vials of

“brownish[,] yellowish” liquid were found in another occupant’s bedroom. That same evidence

also suggests that those items were not in plain view—they were found in shoeboxes kept in a

closet. The AR-15 rifle and associated magazines, in contrast, were found in shared spaces; the

magazines were found under a table in the dining area, and the rifle was found in a closet off of a

common area. The rifle, however, was not in plain view, and the question whether the

magazines were in plain view may be subject to dispute. When asked at the suppression hearing



                                                18
 
whether the magazines were “in plain view,” one of the Deputy Marshal’s present at the eviction

testified: “In plain view. There was some debris and some clothes on the floor. Once they were

moved, the clips were there on the floor.” Dkt. 48 (22:15–18). Although the government might

plausibly argue that “plain view” encompasses circumstances in which the contraband would be

“readily visible” to an occupant in the course of everyday activity—like “opening the [kitchen]

freezer or kitchen cabinet,” United States v. Harris, 515 F.3d 1307, 1310 (D.C. Cir. 2008)—

Taylor might point to authority suggesting that the contraband must be “visible to a passerby,”

Dorman, 860 F.3d at 681. For present purposes, however, the burden is on the government, and

it suffices to conclude that the government has not yet provided evidence or legal analysis

sufficient to allow the Court to conclude that the “weight of the evidence against” Taylor is

substantial.

       The Court, accordingly, finds that the second factor weighs against continued pretrial

detention.

       3.      History and Characteristics of the Defendant

       The third factor requires the Court to consider (1) the defendant’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 (2) whether, at the time of

the current offense or arrest, the defendant was on probation, on parole, or on other release

pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or

local law. 18 U.S.C. § 3142(g)(3).

       Consideration of these factors does not weigh definitively in either direction. On the one

hand, Taylor has been convicted of at least two serious felonies: possession of cocaine with

intent to distribute, and possession of a firearm by a felon. Even more significantly, both
                                                19
 
convictions parallel the current charges, suggesting that Taylor was not previously deterred by

his prior, lengthy sentences. But, on the other hand, Taylor’s prior convictions are dated. His

conviction for possession with intent to distribute occurred almost a quarter century ago, and his

conviction for possession of a firearm by felon occurred well over a decade ago. Furthermore,

the government has not presented evidence that the underlying conduct giving rise to those

convictions involved violence. In the related context of determining when the presumption in

favor of detention applies, the D.C. Circuit declined to treat felon-in-possession charges,

standing alone, as crimes of violence. See United States v. Singleton, 182 F.3d 7, 13–14 (D.C.

Cir. 1999). To be sure, the Court of Appeals applied a “categorical approach” in reaching that

conclusion, while the present question necessarily requires case-by-case consideration. But,

given the lack of evidence that Taylor, in fact, engaged in any act of violence, the Court cannot

conclude that his criminal history discloses a propensity for violence.

        In sum, Taylor’s criminal history involves the same type of conduct at issue in the present

case, and that history involves both drug trafficking and the illegal possession of a firearm. This,

then, at least raises the specter that he might, if released, commit just the type of offense that

Congress concluded poses a unique danger to the community. See 18 U.S.C. § 3142(e)(3)(B)

(identifying an offense under 18 U.S.C. § 924(c) as giving rise to a presumption of

dangerousness). But, because Taylor’s convictions are dated, they did not involve acts of

violence, and his criminal history is not extensive, the Court will not assign significant weight to

this factor.

        The Court, accordingly, finds that the third factor does not tip decidedly in either

direction.




                                                  20
 
       4.      Nature and Seriousness of the Danger to Any Person or the Community that
               Would Be Posed by the Defendant’s Release

       The final factor the Court must consider is the “nature and seriousness of the danger to

. . . the community that would be posed by [Taylor’s] release.” 18 U.S.C. § 3142(g).

Consideration of this factor encompasses much of the analysis set forth above, but it is broader in

scope. For one thing, it requires that the Court to engage in an open-ended assessment of the

“seriousness” of the risk to public safety. And, for another, unlike the “weight of the evidence”

factor, the Court may consider evidence that has been suppressed for purposes of trial. As noted

above, the Bail Reform Act provides that “[t]he rules concerning admissibility of evidence in

criminal trials do not apply to the presentation and consideration of information at the hearing.”

18 U.S.C. § 3142(f). The Court may, for example, consider hearsay. United States v. Perry, 788

F.2d 100, 107 (3d Cir. 1986). The Court may also consider prior arrests or charges brought

against a defendant, even when those actions did not result in convictions. See United States v.

Smith, 160 F. Supp. 3d 280, 284 (D.D.C. 2016); United States v. Douglas, 535 F. Supp. 2d 118,

120 (D.D.C. 2008); see also United States v. Jackson, 845 F.2d 1262, 1265 (5th Cir. 1988);

United States v. Norris, 188 F. App’x 822, 830 (11th Cir. 2006). Thus, as a matter of statutory

interpretation, it is safe to conclude that the Bail Reform Act permits consideration of evidence

suppressed for purposes of trial when assessing “the nature and seriousness of the danger” to the

community that would be posed by the defendant’s pretrial release.

       Nor do Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477

(1981), bar courts from considering un-Mirandized, custodial statements in applying the fourth

Bail Reform Act factor, at least in the absence of any evidence of involuntariness or other police

misconduct. Although no reported decision addresses the application of Miranda to factor four,

an analogous question has arisen in the context of sentencing, where—as in the present


                                                21
 
context—the rules of evidence do not apply, and courts are required to consider all relevant,

reliable information. See, e.g., United States v. Tucker, 404 U.S. 443, 446 (1972) (“[B]efore

making [a sentencing] determination, a judge may appropriately conduct an inquiry broad in

scope, largely unlimited either as to the kind of information he may consider, or the source from

which it may come.”); U.S. Sentencing Guidelines Manual § 6A1.3(a) (U.S. Sentencing Comm’n

2016) (“[T]he court may consider relevant information without regard to its admissibility under

the rules of evidence applicable at trial, provided that the information has sufficient indicia of

reliability to support its probable accuracy.”). In that similar context, those courts of appeals

that have decided the issue—the Fourth, Sixth, Seventh, and Eleventh Circuits—have all held

that statements obtained by the police in violation of Miranda are admissible at sentencing, if

otherwise reliable. See United States v. Nichols, 438 F.3d 437, 439–45 (4th Cir. 2006); United

States v. Graham-Wright, 715 F.3d 598, 601 (6th Cir. 2013); Del Vecchio v. Ill. Dep’t of Corr.,

31 F.3d 1363, 1388 (7th Cir. 1994) (en banc); United States v. Jackson, No. 17-10302, 2017 WL

5495499 *4–*5 (11th Cir. Nov. 16, 2017); cf. United States v. McCrory, 930 F.2d 63, 68–69

(D.C. Cir. 1991) (permitting consideration of evidence obtained in violation of the Fourth

Amendment at sentencing).

       As the Fourth Circuit has explained, although “statements obtained in violation of

Miranda are inadmissible in the government’s case-in-chief,” this rule does not inexorably apply

in other contexts. Nichols, 438 F.3d at 442. Beyond the government’s case-in-chief, courts must

balance “the deterrent effect expected to be achieved by extending the Miranda exclusionary rule

against the harm resulting from the exclusion of reliable evidence from the truth-finding

process.” Id. at 443. At the sentencing phase, that balance will “normally” tilt in favor of

admitting “illegally obtained but reliable evidence” because excluding the un-Mirandized



                                                 22
 
statement “from the government’s case-in-chief at trial will provide ample deterrence against

police misconduct,” and “the additional deterrent effect of excluding [the] evidence from

sentencing usually would be minimal.” Id. Significantly, “absent coercive tactics by police,

there is nothing inherently unreliable about otherwise voluntary statements obtained in violation

of Miranda and Edwards.” Id.

       The same reasoning applies to use of otherwise voluntary, un-Mirandized statements in

assessing the “nature and seriousness of the danger” to the community that would be posed by a

defendant’s pretrial release. The public interest in minimizing the danger to the community

posed by a defendant under indictment for committing one of the limited offenses for which the

Bail Reform Act permits pretrial detention is compelling. See Salerno, 481 U.S. at 748. And, in

the “normal” case, the additional deterrent effect on law enforcement of declining to consider an

un-Mirandized statement will be minimal. Cf. McCrory, 930 F.2d at 68. Courts, moreover, will

retain discretion to accord any such statement the weight that it is due, and may—and should—

decline to consider a statement in circumstances where the deterrent link is more direct, such as

where there is reason to believe that the statement was taken for purposes unrelated to trial, or

where there is other evidence of police misconduct. Cf. id. at 69. Because there is no reason to

suspect any such improper motive here, the Court will consider Taylor’s alleged admission in

applying the fourth Bail Reform Act factor.

       With that admission is mind, the Court concludes that the fourth factor weighs in favor of

pretrial detention. Congress intended that the concern for community safety reflected in the Bail

Reform Act “be given a broader construction than merely danger of harm involving physical

violation,” and, in particular, that it encompass “the risk that a defendant will continue to engage

in drug trafficking.” 3B Charles Alan Wright & Arthur R. Miller, Federal Practice and



                                                 23
 
Procedure § 766 (4th ed. 2013). In addition, although the mere fact that the defendant possessed

a firearm does not constitute evidence of a danger to the community, possession of a firearm by a

convicted felon who is allegedly engaged in illegal drug distribution is a different matter. Cf.

Singleton, 182 F.3d at 15 (observing that holding felon-in-possession offenses to not trigger a

statutory presumption of dangerousness nevertheless did “not deprive the government of an

opportunity to detain armed felons when other circumstances warrant” such detention).

       Accepting Officer Logan’s version of events, the evidence suggests that Taylor was

involved in the distribution of PCP, a particularly dangerous illegal drug; that he possessed three

firearms, including an AR-15 semi-automatic rifle; and that he had scores of rounds of

ammunition in his apartment. The evidence also suggests that Taylor knew that he was taking a

substantial risk by possessing those firearms, but was undeterred by the fact that he had

previously served thirty-seven month sentence for possession of a firearm by a felon. These

facts, along with the (non-bursting) presumption that those charged with drug offenses carrying

sentences of ten years or more or with the use of a gun in the commission of a drug offense pose

a danger to the community, 18 U.S.C. § 3142(e)(2), convince the Court that Taylor’s release

would pose some risk.

       The Court, accordingly, finds that the fourth factor weighs in favor of pretrial detention.

C.     Weighing the Bail Reform Act Factors

       As explained above, two of the four factors weigh in favor of continued detention, one

factor weighs in favor of release, and third factor does not tip decidedly in either direction.

Taylor’s motion, accordingly, presents a close question. On balance, however, the Court

concludes that the government has not met its burden of establishing by clear and convincing

evidence “that no condition or combination of conditions will reasonably assure the safety of any



                                                 24
 
other person and the community.” 18 U.S.C. § 3142(f). A number of considerations bear

emphasis. First, the “weight of the evidence” factor warrants particular attention in this case

because the record is more substantially developed than in the typical case, and, as things

currently stand, the Court is left with questions about whether and how the government will be

able to meet its burden of proof at trial. Second, the record does not reveal any history of

violence by Taylor. Although the Court is concerned about the multiple guns and large quantity

of ammunition found in Taylor’s home, it is yet to be seen whether he personally exercised any

dominion or control over these items. Third, Taylor’s drug conviction is almost a quarter-of-a-

century old. Although sufficiently serious to warrant a ten year sentence, the underlying conduct

was apparently committed when he was only about nineteen years old, and Taylor is now forty-

three. Finally, the use of the high intensity supervision program and other conditions should

mitigate any risk that Taylor’s pretrial release might otherwise present. The Court will, for

example, require that Taylor remain at his sister’s residence, except under narrowly defined

circumstances, and it will also prohibit Taylor from having contact with any potential witnesses

without express authorization from the Court.

                                         CONCLUSION

       For the reasons explained above, Defendant’s Motion to Revoke Order of Detention, Dkt.

57, is hereby GRANTED, subject to the conditions set forth in an order to issue following a

hearing before Magistrate Judge Deborah A. Robinson on January 3, 2018, at 1:30 p.m. in

Courtroom Four. Those conditions shall include entry into the High Intensity Supervision

Program; confinement to his sister’s home until further order of the Court, except for meetings

with counsel, to attend court proceedings, to meet with Pretrial Services, and as otherwise

provided by Pretrial Services; meeting with Pretrial Services no less than once per week; no



                                                25
 
contact with Veandre Purvis or any other potential witness in this case; no possession of firearms

or ammunition; no possession or use of any illegal drug; regular drug testing as directed by

Pretrial Services; and such further conditions that the magistrate judge conducting the hearing

finds appropriate.


                                                     /s/ Randolph D. Moss
                                                     RANDOLPH D. MOSS
                                                     United States District Judge


Date: January 2, 2018




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