UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 05-0386 (ESH)
ANTOINE JONES, et al.,

Defendants.

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MEMORANDUM OPINION AND ORDER

Antoine J ones was found guilty of a conspiracy to distribute and/or possess with intent to
distribute five kilograms or more of powder cocaine and fifty grams or more of crack cocaine on
January 10, 2008. (Dkt. No. 444.) Following his conviction, this Court sentenced him to life
imprisonment. (Dkt. No. 509 at 2.) On August 6, 2010, the Court of Appeals reversed the
conviction on the grounds that the government had violated the Fourth Arnendment by installing
a GPS device on Jones’s vehicle without a warrant. Um'ted States v. Maynard, 615 F.3d 544,
567-68 (D.C. Cir. 2010). The govemment sought review of this decision before the Supreme
Court, which granted its petition for a writ of certiorari on June 27, 2011.

Jones filed a motion for release pending appeal in December 2010, arguing that he was
not likely to flee or to pose a danger to the 'comrhunity. (Dkt No. 571, at 2.) This Court
concluded that it lacked jurisdiction because the Court of Appeals had not yet issued its mandate
and that even if it had jurisdiction, J ones would not be entitled to release because he was
convicted of a felony drug offense with a maximum sentence of ten years or more. (Order [Dkt,
No. 574] at l.) Jones appealed this decision to the Court of Appeals, which denied his motion

without prejudice on March 3, 2011, holding that this Court "retains jurisdiction to consider a

motion for release" and that "J ones may file a renewed motion for release." (Dkt. No. 577.) The
Circuit also held that this Court, "in addressing any renewed motion for release," must "decide
whether it is appropriate to treat Jones (i) pursuant to 18 U.S.C. § 3143(b)(2) and 3l45(c), as a
defendant found guilty and seeking appeal, (ii) pursuant to § 3142, as a defendant awaiting a new
trial, or (iii) pursuant to § 3143(c), as a defendant awaiting a government ‘appeal’ in the form of
a petition for writ of certiorari." (Ia’.) Following the decision of the Court of Appeals, Jones has
filed another pro se motion for release from prison on July 1l, 2011 (Dkt. No. 579), which the
govemment opposes.
ANALYSIS

The Court must first determine the proper legal standard that govems the detention of a
defendant who has been convicted of a crime, has had his conviction overtumed on appeal, but
the govemment’s petition for a writ of certiorari has been granted by the Supreme Court. As the
govemment correctly observes, no federal case addresses this somewhat novel situation (See
Gov’t Opp’n at 12 n.5.) The govemment argues that the Court should treat J ones as a defendant
found guilty and seeking an appeal pursuant to 18 U.S.C. § 3143(b)(2) (Gov’t Opp’n at 5), while
Jones suggests that subsection (c) of § 3143 should apply. (Def.’s Fifth Mot. for Release From
Prison ("Def.’s Mot.") at 3.) The Court of Appeals identified a third possibility: that 18 U.S.C. §
3142, which governs defendants pending trial, applies. As explained herein, the Court concludes
that 18 U.S.C. § 3143(b)(2) is the appropriate standard.

Federal Rule of Criminal Procedure 46 states that "the provisions of 18 U.S.C. § 3143
govern release pending sentencing or appeal The burden of establishing that the defendant will
not flee or pose a danger to any other person or to the community rests with the defendant." Fed.

R. Crim. P. 46(c). Thus, § 3143 govems defendants in cases in which an appeal is still pending.

Subsection (b) applies to a "person who has been found guilty of an offense in a case described
in subparagraph (A), (B), or (C) of subsection (H(l) of section 3142 and sentenced to a term of
imprisonment, and who has filed an appeal or a petition for a writ of certiorari." 18 U.S.C. §§
3143(b)(2). Although Jones’s conviction has been reversed, his appeal remains pending because
the Court of Appeals has withheld its mandate until the Supreme Court’s final disposition of the
case. See United States v. Schaefer, No. 04-20156, 2007 WL 4180388 (D. Kan. Nov. 21, 2007)
(defendant was subject to detention under subsection (b) "pending the finalization of his appeal"
where Court of Appeals had reversed his conviction and where the govemment’s petition for
rehearing en banc was pending). Moreover, Jones has been convicted of an offense with a
maximum sentence of life imprisonment and, therefore, he has been found guilty of an offense
described in § 3142(f)(l)(B). Thus, 18 U.S.C. § 3143(b)(2) requires that the Court "shall order"
that J ones be detained.'

Nevertheless, the Court "may" order Jones’s release if he "meets the conditions of release
set forth in section 3143 . . . (b)(l) . . . [and] if it is clearly shown that there are exceptional
reasons why [his] detention would not be appropriate." Ia’. § 3145(c). Thus, in order to be
released, Jones must show "by clear and convincing evidence that [he] is not likely to flee or
pose a danger to the safety of any other person or the community if released," and that there are
"exceptional reasons" why detention would be inappropriate. See z`d. § 3143(b)(1)(A). Because
J ones has not satisfied his burden under either prong, his continuing detention is required under §

3143@)(2).

l Subsection (c) applies when the government has taken an appeal "under section 3731"
of title 18, which govems where the United States may appeal "to a court of appeals." 18 U.S.C.
§ 3143(c). Because this section does not relate to petitions for writs of certiorari (and does not
specifically apply to defendants who have already been convicted), it appears less suited to this
case than § 3143(b).

This Court has already examined the relevant factors under 18 U.S.C. § 3142 and
determined that J ones should be detained to ensure the safety of the community. (Mem. Op. of
Dec. 29, 2005 (Dkt. No. 59.) at 2-3.) And, Jones has failed to provide the Court with any reason
to reconsider its previous opinion. His most recent filing presents no evidence or argument to
suggest that he does not pose a danger to the community. (See Def.’s Mot. at 1-3.) Jones’s prior
motion for release, filed on December 3, 2010, argues, as he did prior to trial, that he has "no
history of violence, no close ties to co-d_efendants," and that he has been "financially broken,
credit ruined, passport expired." (l\/Iotion for Release Bond or Home Confinement, Pending
Gov’t Appeal [Dkt. No. 571], at 4.) While Jones may not have a history of violence, the Court
has already noted his "prior criminal record," which includes convictions for bribery and the sale
of cocaine. (Mem. Op. at 3, Dec. 29, 2005.) Jones has introduced no evidence, let alone clear
and convincing evidence, to outweigh this Circuit’s instruction that "society is endangered when
courts release those individuals onto the community whose past conduct indicates that they are
likely to possess, control or distribute controlled substances." United States v. Anderson, 670
F.2d 328, 330-31 (D.C. Cir. 1982). The only change that has taken place since 2005 is the
Circuit’s opinion in Maynard. However, the "rules concerning admissibility of evidence in
criminal trials do not apply to the presentation and consideration of infomiation" under § 3142.
18 U.S.C. § 3l42(f). Thus, the Circuit’s opinion in Maynard does not weaken the evidence of
the danger that Jones poses to the community. J ones has failed to submit any evidence that
would raise doubts about the Court’s finding that detention is necessary "to ensure the safety of
the community" (Mem. Op. at 3, Dec. 29, 2005) and has therefore failed to show by clear and

convincing evidence that he meets the conditions for release listed in 18 U.S.C. § 3143(b)(l).

Moreover, even if Jones could meet these conditions, which he cannot, the Court could
not apply § 3 l45(c) because there is no exceptional reason why detention would not be
appropriate. The only reason for releasing Jones that could be "exceptional" is the decision of
the Court of Appeals reversing his conviction. In United States v. Schaefer, a court granted relief
pursuant to § 3 l45(c) where the defendant was not likely to flee or pose a danger to the
community (and, indeed, had been released pending trial and sentencing) and where a Tenth
Circuit panel had reversed his conviction and ordered that he be acquitted 2007 WL 4180388,
at * l, *3. The only thing standing between the defendant in Schaefer and his freedom was the
potential for review by the Tenth Circuit en banc, which, the court noted, was "unlikely." Id. at
*3. Here, by contrast, the Supreme Court has already granted the govemment’s petition for a
writ of certiorari and has decided to review the decision by the Court of Appeals. Moreover,
even a decision from the Supreme Court affirming the Court of Appeals would not necessarily
make his continued incarceration inappropriate, since a reversal would only lead to a new trial.z
See United States v. Herrera~Soto, 961 F.2d 645, 647 (7th Cir. 1992) (no exceptional reasons
where defendant challenged conduct of trial, rather than the “very fact that caused him to be
subject to mandatory detention"). Thus, it is far less likely in this case than it was in Schaefer
that the defendant "would be spending time incarcerated that he should not have served at all."
Schaefer, 2007 WL 4180388, at *3. The Court finds no exceptional reason why detaining Jones

would be inappropriate.

2 F or this reason, the note in the legislative history of this section suggesting that relief
might be appropriate for a "convicted drug dealer who . . . was temporarily incapacitated . . . and
whose appeal raised a novel and difficult search or seizure question on which the conviction will
stand or fall" does not suggest that exceptional reasons exist here. See United States v. Garcia,
340 F.3d 1013, 1018 n.4 (9th Cir. 2003) (emphasis added).

5

Jones has failed to submit clear and convincing evidence that he is not likely to flee or
pose a danger to the community and has failed to establish "exceptional reasons" why his
detention would be inappropriate. Accordingly, it is hereby

ORDERED that defendant’s Motion (Dkt. No. 579) is denied.

/s/
ELLEN SEGAL HUVELLE

United States District Judge

Date: August 1, 2011

