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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 19-CO-35

                          DARRISE JEFFERS, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF1-18130-18)

                         (Hon. Craig Iscoe, Trial Judge)

(Argued April 5, 2019                                      Decided May 23, 2019)

      Veronice A. Holt for appellant.

      Dan Honold, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, John Timmer,
and Melissa Jackson, Assistant United States Attorneys, were on the brief, for
appellee.

     Samia Fam and Alice Wang were on the brief for amicus curiae Public
Defender Service.

      Before EASTERLY and MCLEESE, Associate Judges, and WASHINGTON, Senior
Judge.

      MCLEESE, Associate Judge: Appellant Darrise Jeffers appeals from the trial

court’s order detaining Mr. Jeffers pending trial pursuant to D.C. Code § 23-1325
                                          2

(2012 Repl.). After briefing and oral argument, the court issued an emergency order

remanding the case for further proceedings. We now publish this opinion to explain

our ruling more fully.



                                          I.



      In December 2018, Mr. Jeffers was charged with first-degree murder while

armed. After a detention hearing in January 2019, the trial court ordered Mr. Jeffers

held without bond pending trial, pursuant to D.C. Code § 23-1325(a) (2012 Repl.).



      In summary, the evidence at the detention hearing as to the charged offense

was as follows. At about 8 p.m. on July 16, 2018, several people were shot in an

area known as Clay Terrace. One of them, a ten-year-old child, died as a result.

Four people fired shots at the scene. Shell casings recovered from the scene

indicated that at least four different weapons were fired, including a nine-millimeter

weapon, a .45-caliber weapon, and a 5.56-millimeter rifle. The shooters, several of

whom wore gloves, arrived at the scene in a black Infiniti. The Infiniti, which had

previously been stolen in an armed carjacking, was found the next morning in

Maryland. Ballistics and other evidence tied the Infiniti to the shooting and to

various members of a “crew” known as Wellington Park. Wellington Park was in a
                                         3

dispute with another group known as Clay Terrace. The feud may have stemmed

from a prior incident in October 2017 in which a member of Wellington Park was

shot.



        Mr. Jeffers was a member of Wellington Park. About a week before the

shooting, he exchanged text messages with Marquell Cobbs, another member of

Wellington Park. The text messages indicated that Mr. Jeffers had a pistol that could

have been a nine-millimeter. The same day, Mr. Cobbs communicated about guns

with Qujuan Thomas, another member of Wellington Park.



        On the day of the shooting, Quentin Michals, another Wellington Park

member, communicated with Mr. Thomas and Gregory Taylor (yet another member

of Wellington Park) about obtaining firearms and recruiting other members of

Wellington Park to participate in a planned shooting. About a half-hour before the

shooting, a security camera filmed Mr. Jeffers, Mr. Michals, and others walking out

of 2508 Pomeroy Road SE at various points. Mr. Jeffers lived at 2506 Pomeroy.

The black Infiniti that was later involved in the shooting was parked outside of 2508

Pomeroy, as was a silver BMW. Mr. Jeffers remained outside 2508 Pomeroy, at

times speaking with Mr. Cobbs and two others. Several people, some wearing

hoodies and/or gloves, got into the two cars. It was a very hot day, with a high
                                          4

temperature of 95 degrees. After speaking to one of the passengers in the BMW,

Mr. Jeffers went back into 2508 Pomeroy, returned with a pair of sneakers, and

handed the sneakers to one of the passengers.



      Both cars then drove off at about 7:35 p.m. Shortly thereafter, the silver BMW

returned, driven by Mr. Michals. As previously noted, the shooting occurred at

approximately 8 p.m.       In the following twenty minutes, other members of

Wellington Park returned on foot to the area outside 2508 Pomeroy. Mr. Jeffers was

sitting outside 2508 Pomeroy during this period, at times talking with others

including Mr. Michals. A couple of hours later, Mr. Jeffers and others allegedly

involved in the shooting were outside of 2508 Pomeroy, dancing, singing, and

displaying cash.



      Finally, the day after the shooting, Mr. Jeffers and Mr. Michals exchanged

messages about the location of various firearms, possibly including a nine-

millimeter handgun and a firearm with a 100-round drum barrel that other evidence

indicated may have been used in the shooting.



      Based on this evidence, the trial court found that there was a substantial

probability that Mr. Jeffers was guilty of first-degree murder as an aider and abettor.
                                          5

That finding gave rise to a rebuttable presumption that no conditions of release could

reasonably assure the safety of the community.            D.C. Code § 23-1325(a).

Concluding that Mr. Jeffers failed to rebut that presumption, the trial court ordered

Mr. Jeffers held without bail until trial, which the trial court subsequently set for

August 2020.



                                         II.



      Section 23-1325 authorizes pretrial detention of defendants charged with

certain particularly serious crimes, including first-degree murder, upon a showing of

(1) probable cause to believe that the defendant committed the offense and (2) clear

and convincing evidence that no conditions of release will reasonably assure the

safety of the community. Pope v. United States, 739 A.2d 819, 825, 827 (D.C.

1999). If the court finds a substantial probability that the defendant committed the

offense, there is a rebuttable presumption that no conditions of release will

reasonably assure the safety of the community. D.C. Code § 23-1325(a).



      We first address the meaning of the phrase “substantial probability” in § 23-

1325(a). Each of the terms in that phrase can have a range of meanings. “On the

one hand, ‘substantial’ means ‘not seeming or imaginary’; on the other, it means
                                           6

‘that specified to a large degree.’” Victor v. Nebraska, 511 U.S. 1, 19 (1994)

(quoting Webster’s Third New International Dictionary 2280 (1981)). Similarly,

             [t]o a statistician, the term “probability” means simply
             how likely something is, and can vary anywhere from zero
             (meaning, in truth, no probability at all, or impossibility)
             to one (meaning certainty). This is also the usage in
             common speech, where we may speak of a “small”
             probability (meaning much less than half), a “pretty
             good,” “reasonable,” or “fair” probability (meaning
             something in the middle range, perhaps a little more or less
             than one-half), or a “strong,” “overwhelming,” or “very
             great” probability (meaning something that will happen
             most of the time, well over half).

             The other usage, derived from the definition of probability
             as “the state of being probable,” implies that rather than a
             continuum of states there are only two: a probability or
             not a probability. This is the 50+% test.

Bell v. United States, 854 F.2d 881, 889 (6th Cir. 1988).



      Depending on the meaning given to its components, the phrase “substantial

probability” can mean anything from “a not-insignificant chance” to “very likely.”

See, e.g., Ingram v. United States, 592 A.2d 992, 1002 (D.C. 1991) (describing 20%

chance as substantial probability); I-CA Enters. v. Palram Ams., Inc., 185 Cal. Rptr.

3d 24, 45 (Ct. App. 2015) (in context of claim at issue, “substantial probability”

“means that it is very likely that the plaintiff will prevail on such a claim or there is

a strong likelihood that the plaintiff will prevail on such a claim”) (internal quotation

marks omitted). Interpreting the phrase thus requires consideration of context. See,
                                          7

e.g., Coll. Hosp., Inc. v. Superior Court, 882 P.2d 894, 900 (Cal. 1994) (“The phrase

‘substantial probability,’ standing alone, is particularly ambiguous. These and

similar words are widely used in California law under circumstances which indicate

that their meaning depends entirely upon the particular context.”).



      Our prior cases provide some guidance as to how to understand “substantial

probability” in the context of pretrial detention. D.C. Code § 23-1322 (2012 Repl.)

permits temporally limited pretrial detention of defendants in certain circumstances.

Interpreting a since-amended version of § 23-1322, we held that “[a] ‘substantial

probability’ is a degree of proof meaningfully higher than probable cause, intended

in the pretrial detention statute to be equivalent to the standard required to secure a

civil injunction—likelihood of success on the merits.” Blackson v. United States,

897 A.2d 187, 196 n.16 (D.C. 2006) (interpreting D.C. Code § 23-1322 (2001 &

2005 Supp.)) (internal quotation marks omitted); United States v. Edwards, 430 A.2d

1321, 1339 (D.C. 1981) (en banc). We also “have cautioned against equating

‘substantial probability’ with the ‘clear and convincing evidence’ standard.”

Blackson, 897 A.2d at 196 n.16. Finally, we have explained that the substantial-

probability standard requires “an informed estimate of whether the government will

prove the charge at trial.” Edwards, 430 A.2d at 1338 n.42.
                                          8

      The phrase “substantial probability” was introduced into § 23-1325 in 1989.

Law Enforcement Amendment Act of 1989, D.C. Law 8-120, § 2(b), 37 D.C. Reg.

24, 25 (Jan. 5, 1990). Neither the parties nor our cases suggest any reason for

interpreting the phrase differently in § 23-1325 than in § 23-1322. See generally,

e.g., Smith v. United States, 597 A.2d 377, 382 n.11 (D.C. 1991) (“Ordinarily,

Congress may be presumed to know the construction which has been given to prior

statutory provisions, and to know their history, when it incorporates them into later

legislation. The same reasoning applies to the Council of the District of Columbia.”)

(citation and internal quotation marks omitted); Merrill v. Fahs, 324 U.S. 308, 313

(1945) (“But to interpret the same phrases in the two [laws] concerning the same

subject matter in different ways where obvious reasons do not compel divergent

treatment is to introduce another and needless complexity . . . .”). We therefore treat

our cases interpreting “substantial probability” under § 23-1322 as fully applicable

to § 23-1325.



      Tying the substantial-probability standard to “likelihood of success on the

merits” creates a complication. In this court, as used in the context of requests for

preliminary injunctions, “likelihood of success on the merits” “does not express a

fixed measurement, as it is part of a multi-factor test where a stronger showing on

some factors can compensate for a weaker showing on others.” Competitive Enter.
                                          9

Inst. v. Mann, 150 A.3d 1213, 1234 (D.C. 2016; amended 2018) (footnote omitted);

cf., e.g., Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (noting conflict

among federal courts of appeals as to whether sliding-scale approach to “likelihood

of success on the merits” remains permissible after Winter v. Nat. Res. Def. Council,

555 U.S. 7 (2008)). It is not clear how the “sliding scale” approach applicable to

requests for preliminary injunctions would operate if imported into the pretrial-

detention statutes. Perhaps for that reason, the parties in this case do not advocate

the use of a sliding-scale approach in the current context, rather each advocating a

different fixed measurement of “substantial probability.” We also do not understand

the Public Defender Service as amicus curiae to advocate a sliding-scale approach.

We agree with and therefore accept this consensus.



      We turn to the question of what fixed measurement of “substantial

probability” is appropriate for purposes of § 23-1325. We hold that to establish a

substantial probability the United States must show at a minimum that it is more

likely than not that the defendant would be found guilty beyond a reasonable doubt

at trial of an offense permitting detention under § 23-1325. We so hold for two

reasons. First, the phrase “likelihood of success on the merits” naturally directs the

inquiry to the chances of conviction at trial. Edwards, 430 A.2d at 1338 n.42

(substantial-probability standard requires “an informed estimate of whether the
                                          10

government will prove the charge at trial”). Assessing the likelihood of success at

trial, moreover, requires consideration of the burden of proof applicable at trial. See,

e.g., Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1379 (Fed. Cir.

2009) (when ruling on request for preliminary injunction in patent case in which

movant would bear burden to prove patent invalidity by clear and convincing

evidence at trial, trial court “must determine whether it is more likely than not that

the [movant] will be able to prove at trial, by clear and convincing evidence, that the

patent is invalid”); cf. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418, 429 (2006) (“[T]he burdens at the preliminary injunction stage track

the burdens at trial.”).



       Second, we have previously given great weight to the legislative history of the

enactment of § 23-1322 in interpreting the phrase “substantial probability.”

Edwards, 430 A.2d at 1334, 1339. The House Report on the bill including what

became § 23-1322 explained that the substantial-probability standard was chosen “to

minimize so far as practicable the possibility of detaining defendants prior to trial

who are innocent of the charge lodged against them.” H.R. Rep. No. 91-907, at 182

(1970). It would be inconsistent with that purpose to interpret the substantial-

probability standard to give rise to a presumption of detention in cases in which the
                                         11

trial court concludes that the defendant was more likely to be acquitted than to be

convicted.



      Mr. Jeffers and the Public Defender Service argue that the substantial-

probability standard should be interpreted to require not merely a showing that the

United States is more likely than not to prevail at trial, but rather a showing of

“strong likelihood” or “reasonable certainty” of success at trial. We need not decide

that issue, and we express no view on it. For purposes of deciding the present case,

it suffices to hold, as we do, that the substantial-probability standard requires at a

minimum that the trial court find it more likely than not that the defendant would be

found guilty beyond a reasonable doubt at trial of an offense permitting detention

under § 23-1325. That holding suffices to decide this case because we conclude that

the record does not reasonably support such a conclusion.



      There is no direct evidence that Mr. Jeffers was aware of the intended shooting

before it occurred, much less that he intended that the shooting occur. There is also

no direct evidence that Mr. Jeffers took an act that aided and abetted the shooting or

was intended to do so. The United States argues that the circumstances taken as a

whole permit reasonable inferences that Mr. Jeffers was aware of the shooting ahead

of time; that he intended to assist with the shooting; and that he participated in the
                                          12

planning of and preparations for the shooting, by among other things being involved

in a conversation about guns before the shooting, speaking with the shooters before

the shooting, and bringing sneakers to one of the passengers in the BMW. As the

United States acknowledges, Mr. Jeffers’s conduct after the shooting cannot be

considered the actus reus of an aiding-and-abetting offense, but may be considered

as shedding light on Mr. Jeffers’s mental state before the shooting. See, e.g., Martin

v. United States, 606 A.2d 120, 133 (D.C. 1991) (“[T]he jury may consider [the

alleged aider and abettor’s] subsequent conduct to the extent, if any, that it sheds

light on his state of mind prior to the shooting.”). One can debate the strength of the

inferences urged by the United States, but we conclude that those inferences are not

sufficiently strong to support a reasonable conclusion that the United States is more

likely than not to persuade a factfinder at trial that Mr. Jeffers is guilty beyond a

reasonable doubt of aiding and abetting first-degree premeditated murder.



      For the foregoing reasons, the prior emergency order of this court reversed the

order of the Superior Court and remanded the case for further proceedings.
