UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 18-cr-144 (RC/GMH) ) ABDUL K. SAMUELS, ) ) Defendant. ) )

DETENTION MEMORANDUM

This matter comes before the Court upon the application of the United States that Defend-

ant, Abdul K. Samuels, be detained pending trial pursuant to

. Defendant is

charged by indictment with one count of unlawful possession of a firearm and ammunition by a

convicted felon in violation of

(g)(1), one count of unlawful possession with intent to

distribute cocaine base in violation of

(a)(1) and 841(b)(1)(C), and one count of

using, carrying, and possessing a firearm in furtherance of a drug trafficking offense in violation of

(c)(1). The Court held a detention hearing on May 16, 2018. At the conclusion of

that hearing and upon consideration of the proffers and arguments of counsel and the entire record

herein, the Court ordered Defendant held without bond. This memorandum is submitted in

compliance with the statutory obligation that “the judicial officer shall . . . include written findings

of fact and a written statement of the reasons for the detention.”

(i)(1).

FINDINGS OF FACT

At the detention hearing, the United States proceeded by proffer based on the indictment.

The defense offered no contrary evidence on the merits of the offense, but did provide, also by

proffer, additional information about the history and characteristics of Defendant, specifically about his ties to the community. Accordingly, the Court makes the following findings of fact.

A. Evidence Relevant to the Charged Offense

On February 1, 2018, as part of an investigation by the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”) into narcotics trafficking from a particular premises on Martin

Luther King, Jr. Avenue (“MLK Avenue”) in the southeast quadrant of the District of Columbia,

law enforcement executed a search warrant on that premises, which comprises a barber shop on

the first floor and a series of eight rooms, including a kitchen and bathroom, on the second floor.

In the barber shop, agents recovered various kinds of drug paraphernalia (baggies, capsules,

ziplocs, and a digital scale), a loaded 9mm firearm and assorted ammunition, and a ziploc

containing a substance suspected to be heroin. In one of the rooms on the second floor, agents

recovered a wallet, identification, credit cards, and mail matter in the name of a person, present at

the search, who identified himself as the barbershop manager. That room also contained drug

paraphernalia, such as baggies, a razor blade, a straw, and a scale; a vial of PCP; and six rounds of

ammunition. Two more loaded firearms, as well as more ammunition, more drug paraphernalia,

and more suspected drugs were found in the kitchen. Other rooms contained more drugs—PCP,

heroin, and suboxone, some packaged for sale—more paraphernalia, including two more scales,

and over $7,000 in cash. Agents also discovered a document directed to one of the targets of the

ATF investigation, an individual named Anthony Fields, whose vehicle, which had been searched

earlier, had contained the keys to the premises on MLK Avenue.1

Also on February 1, 2018, law enforcement executed a search warrant at an address on

46th Street in the southeastern quadrant of the District of Columbia. This search recovered an

1 Mr. Fields was arrested on February 1, 2018, and indicted on February 6, 2018, on various drug trafficking charges. He has been held without bond in Unites States v. Fields, Case No. 18-cr-23 (APM), since his arrest.

2 identification card and miscellaneous documents in the name of Mr. Fields. Agents also found a

ledger, consistent with narcotics record keeping, with the notation “Foots” and the number 500

next to it, which law enforcement interpreted as documentation of a $500 narcotics debt owed by

“Foots” to Mr. Fields. On March 14, 2018, agents executed a search warrant on nineteen cell

phones seized during the February 1 searches. Forensic extraction performed on the devices was

able to match the sobriquet “Foots” to a cell phone number, and also discovered several phone

calls between “Foots” and Mr. Fields. Using a law enforcement database, agents were able to

identify Defendant as “Foots.” Agents also obtained Mr. Fields’ jail calls (as noted, Mr. Fields

has been detained since his arrest in early February), and heard him giving an unidentified female

a list of seven phone numbers, one of which was Defendant’s. During another call, Mr. Fields

instructed a woman to call the number identified with Defendant. When the person at that number

joined the three-way call, the woman called him “Foots,” and Mr. Fields told “Foots” to tell Mr.

Fields’ attorney that “Foots” had a key to the barbershop.

Law enforcement then confirmed that Defendant had a driver’s license listing an address

on Alabama Avenue in the southeastern quadrant of the District of Columbia, and also had a

vehicle registered to that address. On April 13, 2018, ATF agents removed two bags of garbage

from a bin in the alley behind that premises. From one of them they recovered mail directed to

Defendant at that address, as well as part of a plastic bag coated with a white powdery residue

consistent with cocaine powder. From the other bag, agents found mail addressed to a woman

who, they later discovered also had a vehicle registered to the Alabama Avenue address. That

receptacle also contained bag fragments with white, powdery residue. At a later search of trash

left behind the residence, law enforcement found more mail in Defendant’s name, as well as some

3 unused pink zips, which are commonly used to package narcotics.

On April 26, 2018, officers from the Metropolitan Washington Airport Authority stopped

Defendant on the Dulles Airport access road in Virginia on suspicion of driving while intoxicated,

commonly referred to as driving under the influence. Officers observed a baggie containing five

rocks of crack cocaine, which weighed (with the packaging), approximately eighteen grams.

Defendant was arrested for felony possession of a controlled substance.

On May 10, 2018, law enforcement executed a search warrant at the Alabama Avenue

address associated with Defendant. The door was not answered when agents knocked and

announced that they were law enforcement; when the door was breached, agents detained

Defendant, who identified himself. Also present in the residence was the woman who received

mail at and had a vehicle registered to the address, who has been identified as Defendant’s

girlfriend. Upon entering, agents observed in Defendant’s hand a plastic bag fragment that was

later recovered on the kitchen counter. A white rock-like substance in the baggie field-tested

positive for crack and weighed approximately 4.9 grams (with the packaging). From the master

bedroom, agents recovered a 12-gauge shotgun, one round of 12-gauge ammunition, and two

rounds of .45 caliber ammunition; twenty-two rounds of 12-gauge ammunition were discovered

near the front door. Agents also found drug paraphernalia at the residence, including a razor blade,

a Pyrex cup with white residue, a spoon, zips, and a digital scale. A rental car that agents had

observed Defendant driving was present near the residence. A drug dog alerted upon examination

of the vehicle. When searched, the vehicle contained baggies and a digital scale, as well as mail

in Defendant’s name. After Defendant was advised of his Miranda rights, he admitted that the

shotgun was his and that he knew he was prohibited from possessing it as a convicted felon.

4 Defendant denied being a drug dealer, asserting that he was merely a drug user. However,

Defendant’s drug test upon arrest was positive for opiates and negative for cocaine, which is

consistent with the government’s theory that, although Defendant may use heroin or other opiates,

he deals cocaine base.

B. Defendant’s Criminal History

Defendant has a rather lengthy history of arrests and convictions. In March 1993, he was

arrested for possession with intent to distribute PCP/LSD, and pleaded guilty to two possession

offenses. He was sentenced in April 1994 to a term of imprisonment of nine months. In November

1993, he was arrested for possession with intent to distribute cocaine; he pleaded guilty to

possession and was sentenced in November 1994 to a term of imprisonment of six months. In

1995, Defendant pleaded guilty to assault with a dangerous weapon and was sentenced to a term

of imprisonment of forty months to ten years. More recently, on March 23, 2018, Defendant was

arrested for leaving the scene of a collision resulting in personal injury. That case is pending in

D.C. Superior Court. Finally, on April 26, 2018, Defendant was arrested in Virginia for possession

of narcotics—the approximately 18 grams of crack mentioned above. He was on pretrial release

in both those recent cases at the time of the search of the Alabama Avenue residence and his arrest

on these federal charges.

LEGAL STANDARD

The Bail Reform Act of 1984,

et seq., provides, in pertinent part, that if

a judicial officer finds by clear and convincing evidence 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]

5 before trial.”

(e). Thus, even if a defendant is not considered a flight risk, his or

her danger to the community alone is sufficient reason to order pretrial detention, and vice versa.

United States v. Salerno,

(1987); United States v. Perry,

(3d

Cir. 1986); United States v. Sazenski,

(8th Cir. 1986). Where the judicial

officer’s justification for detention is premised upon the safety of the community, the decision

must be supported by “clear and convincing evidence.”

(f)(2). Where the

justification for detention is risk of flight, the decision must be supported by a preponderance of

the evidence. See United States v. Simpkins,

(D.C. Cir. 1987).

Section 3142 imposes a rebuttable presumption of dangerousness or flight risk on certain

defendants based on the crimes with which they are charged, their prior convictions, or similar

considerations. See

(e)(2), (3). For purposes of determining whether a rebuttable

presumption is triggered, “[a] grand jury indictment, by itself, establishes probable cause to believe

that a defendant committed the crime with which he is charged.” United States v. Stone,

(6th Cir. 2010); United States v. Smith,

(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.”). Here, Defendant was indicted under

(a)(1) and 841(b)(1)(C) for possession with intent to distribute cocaine base, an

offense for which the maximum term of imprisonment is twenty years. This offense triggers the

rebuttable presumption of section 3142(e)(3)(A), which provides that “[s]ubject to rebuttal by the

person, it shall be presumed that no condition or combination of conditions will reasonably assure

[(1)] the appearance of the person as required and [(2)] the safety of the community if the judicial

officer finds that there is probable cause to believe that the person committed . . . an offense for

6 which a maximum term of imprisonment of ten years or more is prescribed in the Controlled

Substances Act.”

(e)(3)(A).

Once the rebuttable presumption is triggered, it “operate[s] at a minimum to impose a

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

presumption.” See United States v. Alatishe,

(D.C. Cir. 1985). As this Court

has emphasized, “[w]hile the burden of production may not be heavy, the applicable cases all speak

in terms of a defendant’s obligation to introduce ‘evidence.’” United States v. Lee,

(D.D.C. July 1, 2016) (citations omitted). Thus, the defendant must offer not mere

speculation, but “at least some evidence,” or basis to conclude that the presumption has been

rebutted in his or her case. Stone, 608 F.3d at 945–46; Alatishe,

; see also United

States v. Taylor,

(D.D.C. 2018). Specifically, a defendant “should ‘present

all the special features of his case’ that take it outside ‘the congressional paradigm’” giving rise to

the presumption. Stone,

(quoting United States v. Jessup,

(1st

Cir. 1985)); see also United States v. Portes,

(7th Cir. 1985) (presumptions in

section 3142(e) “are ‘rebutted’ when the defendant meets a ‘burden of production’ by coming

forward with some evidence that he will not flee or endanger the community if released”).

That said, the burden of persuasion on the issue of detention remains, as always, with the

government. United States v. Mercedes,

(2d Cir. 2001). But even where the

defendant offers evidence to rebut the presumption, the presumption is not erased. It is “not a

‘bursting bubble’ that becomes devoid of all force once a defendant has met his burden of

production.” Taylor,

(quoting Jessup,

). Rather, even after

the defendant carries his burden of production, the presumption “remains in the case as an

7 evidentiary finding militating against release, to be weighted along with other evidence relevant

to factors listed in § 3142(g).” United States v. Dominguez,

(7th Cir. 1986);

Taylor,

(“[T]he 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.” (quoting Jessup,

)); United States v. Ali,

(D.D.C. 2011).

ANALYSIS

A. Application of the Rebuttable Presumption

Defendant concedes that the rebuttable presumption in favor of pretrial detention pursuant

to

(e)(3)(A) applies here, but stresses that his strong ties to the community are

sufficient to meet his burden of production to rebut it. Specifically, Defendant argues that he is a

long-time resident of the D.C.-area, has lived at the Alabama Avenue address with his girlfriend

for four years, and has been gainfully employed since his release from jail five years ago, most

recently for a construction company working on the Washington Area Metropolitan Transit

Authority’s Silver Line project. He also notes that the amount of drugs found on him at his recent

arrest was relatively small.

Having heard the parties’ proffers, the Court finds that Defendant has rebutted the

presumption that he is a flight risk. Defendant is a U.S. citizen who has lived in the area for more

than two decades. He has ties to the community, including a girlfriend, and has a history of gainful

employment. However, Defendant failed to produce at the hearing “some credible evidence

contrary to the statutory presumption” of his dangerousness were he to be released. Alatishe,

.

Congress has determined that individuals who, like Defendant, have been charged with

8 drug offenses carrying a maximum term of imprisonment of ten years or more presumptively pose

a danger to the community. See United States v. Bess,

(D.D.C. 1988)

(explaining that the presumption “represents Congress’s general factual view about . . . the

special risks of danger to the community presented by defendants who commit the crimes to

which it attaches”). Here, Defendant’s charges include not only drug trafficking, but also

possession of a weapon in furtherance of that crime, as well as possession of a weapon by a

convicted felon. “[A]lthough 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.” United States v. Taylor,

(D.D.C. 2018). Defendant objects that the amount of cocaine recovered at

his arrest was not large—the government estimates its street value at $400 to $500—but that

rationalization ignores a few salient facts. First, the search of his home also uncovered

paraphernalia associated with drug dealing, including material for packaging and weighing

narcotics and crack-cooking equipment, that is, the Pyrex cup with white residue. Second, a mere

two weeks prior to his arrest on these charges, he was found in possession of eighteen grams of

crack. Third, the ATF investigation has connected him to the premises with the barbershop, where

even more paraphernalia consistent with drug trafficking was found. Moreover, the weight of the

evidence is strong that Defendant possessed the drugs, drug paraphernalia, gun, and ammunition.

It was found by law enforcement at his home and he admitted that the gun, at least, was his.

Finally, the probative value of Defendant’s evidence concerning his ties to the community is

limited because “this evidence would equally tend to suggest that Defendant would never have

committed the crime with which he is now charged.” United States v. Bess,

, 935

9 (D.D.C. 1988) (“The history and characteristics of Defendant—his family and community ties

[and] his educational and employment record . . . did not deter him from committing armed robbery

in the first instance . . . .”).

B. Application of the Section 3142(g) Factors

Had Defendant fully rebutted the presumption in favor of his detention, and the Court were

to consider the Bail Reform Act’s four section 3142(g) factors, the conclusion would ultimately

be the same: Defendant should be held without bond pending trial. The four factors that must be

considered in making a bond determination are: (1) the nature and circumstances of the offense;

(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.

(g). Further, where, as here, a

rebuttable presumption applies, it “remains in the case as an evidentiary finding militating against

release, to be weighted along with other evidence relevant to factors listed in § 3142(g),” even if

the defendant has met his or her burden of production of offering some credible evidence to the

contrary. Dominguez,

; Taylor,

; Ali,

.

1. Nature and Circumstances of the Charged Offense

The first factor, the nature and circumstances of the charged offense, favors detention. This

factor asks the Court to consider “the nature and circumstances of the offense charged” as a general

matter, but points especially to instances where “the offense is a crime of violence . . . or involves

a controlled substance, firearm, explosive, or destructive device.”

(g)(1). Here,

the indictment and the government’s proffer establish probable cause to believe Defendant

engaged in a drug trafficking offense involving cocaine base. Defendant admitted to possessing a

10 firearm that he knew he was prohibited from possessing. Finally, the charge of possessing a

firearm during a drug trafficking offense carries a mandatory minimum term of imprisonment of

five years,

(c)(1)(A)(i), reflecting Congress’ judgment as to the seriousness of the

offense. Therefore, the nature and circumstances of the offense weigh in favor of detention.

2. The Weight of the Evidence

The weight of the evidence against Defendant is strong and also favors detention. As

outlined above, law enforcement recovered the drugs, drug trafficking paraphernalia, gun, and

ammunition from Defendant’s residence, and he admitted that the gun was his.

3. The History and Characteristics of Defendant

Section 3142(g)(3) directs 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.

(g)(3)(A)–(B).

Defendant has been convicted of a crime of violence—assault with a deadly weapon—in

which a firearm was used. His current arrest, which also includes firearms charges, occurred while

he was on pretrial release for a felony narcotics crime in Virginia and a misdemeanor charge for

leaving the scene of a collision in the District of Columbia. The fact that he violated one of the

most important conditions of his release—that he should not engage in other criminal activity—

indicates that Defendant is unwilling to conform his conduct to the dictates of the law. For these

11 reasons, Defendant's history and characteristics militate in favor of detention.

4. The Danger to the Community

The fourth factor, the danger to the community posed by Defendant were he to be released,

also weighs in favor of detention. The danger to the community posed by his possession of a

weapon and drug dealing is discussed above and requires no further explanation here.

For these reasons, the Court does not have confidence that, if released, Defendant would

not continue to engage in criminal activity. The undersigned therefore finds that there is no

condition or combination of conditions that would keep the community safe if Defendant were

released.

CONCLUSION

Based on the consideration of all the evidence, the factors set forth in section 3142(g), and

all lesser restrictive alternatives to pretrial detention, the Court finds by clear and convincing

evidence that no condition or combination of conditions exist that would reasonably assure the

safety of any other person or of the community if Defendant was released. Therefore, the

government’s motion for pretrial detention is GRANTED.

DIRECTIONS REGARDING DETENTION

Defendant is ORDERED remanded to the custody of the Attorney General or to the

Attorney General’s designated representative for confinement in a corrections facility separate, to

the extent practicable, from persons awaiting or serving sentences or being held in custody pending

appeal. Defendant must be afforded reasonable opportunity for private consultation with defense

counsel. On order of a court of the United States or on request of an attorney for the government,

the person in charge of the corrections facility must deliver Defendant to a United States Marshal

12 for the purpose of an appearance in connection with a court proceeding. G. Michael Harvey 2018.05.21 12:37:14 Date: May 21, 2018 -04'00' ___________________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

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