UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) v. ) Criminal No. 19-cr-194 (KBJ) ) ROBERT LEAKE, ) ) Defendant. ) )

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S SUPPLEMENTAL MOTION FOR EMERGENCY RELEASE

On April 7, 2020, Defendant Robert Leake filed an emergency motion with this

Court seeking release from pretrial detention due to COVID-19. (See Def.’s Mot. for

Release from Custody (“Def.’s Mot.”), ECF No. 34.) The Court denied Leake’s motion

without prejudice, on the grounds that Leake had failed to show either (1) that the

COVID-19 pandemic had a material bearing on the Court’s assessment of his

dangerousness for the purpose of

(f), or (2) that his temporary release

was necessary due to the compelling reason of the COVID-19 pandemic for purposes of

(i). See United States v. Leake, No. 19-CR-194 (KBJ),

, at *1–4 (D.D.C. Apr. 17, 2020). The Court also rejected Leake’s argument

that his continued pretrial detention in D.C. Jail violates his constitutional rights. (See

at *4–5.) Because the Court’s analysis of Leake’s request for release turned in part

on Leake’s alleged (but unsubstantiated) underlying medical condition, however, the

Court noted that Leake could renew his motion for release if he was able to provide

“sufficient evidence to substantiate his claim that he has an underlying medical

condition that makes him particularly susceptible to injury from contracting COVID-

19[.]”

.

1 Leake has now filed a supplemental motion for release from custody in which he

presents additional facts concerning his alleged underlying medical condition—

asthma—and authorizes the Court to seek his medical records from the D.C. Department

of Corrections (“D.C. DOC”). (See Def.’s Mot. to Renew and Suppl. the Def.’s

Emergency Mot. for Release (“Def.’s Renewed Mot.”), ECF No. 40, at 1–2.) 1 Leake

also asserts that, if released, his sister would serve as a third-party custodian. (See

.) In response to Leake’s supplemental motion, the Court ordered D.C. DOC to

produce Leake’s medical records (see Order, ECF No. 41), which the Court now

possesses, and the Government filed a memorandum opposing Leake’s renewed request

for release (see Gov’t Opp’n to Def.’s Renewed Mot. (“Gov’t Opp’n”), ECF No. 42).

Having considered these additional materials, this Court finds that Leake’s

asthma is substantiated, and that his underlying medical condition has become relevant

to the issue of whether or not Leake should be detained pretrial in light of the

intervening emergence of COVID-19 in the detention facility where Leake is being

held. Given that relevant medical conditions implicate a court’s evaluation of a

defendant’s history and characteristics under section 3142(g)(3)(A), such that a

reopening of the original detention determination may be warranted under section

3142(f), see United States v. Dabney, No. 20-CR-27 (KBJ),

, at *2

(D.D.C. Apr. 13, 2020), this Court easily finds that COVID-19 is “information . . . that

was not known to [Leake] at the time of his [detention ] hearing” and that does have a

“material bearing on the issue [of] whether there are conditions of release that will

reasonably assure . . . the safety of any other person and the community” in light of

Leake’s medical condition.

(f). But, unfortunately for Leake, it is

1 Page-number citations to the D.C. DOCuments that the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns. 2 equally clear to this Court that, after the pretrial detention determination is reopened,

the section 3142(g) factors still weigh in favor of his detention, for the reasons

explained below. In addition, Leake has not shown, for the purposes of section 3142(i),

that there is a compelling reason for his temporary release or that his sister is an

appropriate person into whose custody he could be released. Furthermore, even if D.C.

DOC “has proven unable to handle the [COVID-19] crisis[,]” as Leake’s motion claims

(Def.’s Renewed Mot. at 2), Leake has not provided any new evidence that compels a

different conclusion regarding his constitutional claims than the one that the Court

reached in its previous decision. See Leake,

, at *5.

I.

To evaluate whether or not Leake’s mild, intermittent asthma tips the balance in

favor of his pretrial release with respect to the detention factors laid out in section

3142(g) due to the COVID-19 pandemic, the Court begins by recalling that Leake is

charged with four drug and gun offenses, three of which carry a statutory rebuttable

presumption of dangerousness, and thus, of pretrial detention. (See Order of Detention,

ECF No. 14, at 3.) 2 While “[a] defendant’s ‘burden of production’ to rebut the Bail

Reform Act’s presumption of detention is not ‘heavy,’” Dabney,

, at

*2 (citation omitted), he must still “offer some credible evidence contrary to the

statutory presumption[,]” United States v. Alatishe,

(D.C. Cir. 1985).

2 A rebuttable presumption in favor of detention arises under

(e)(3) for, among other offenses, violations of the Controlled Substances Act (

) that carry a maximum term of imprisonment of 10 years or more and for offenses arising under

(c). See

(e)(3)(A)–(B). Leake has been charged with unlawful possession with intent to distribute 28 grams or more of cocaine base in violation of

(b)(1)(B)(iii), which carries a maximum term of imprisonment of 40 years, and unlawful possession with intent to distribute heroin in violation of

(b)(1)(C), which carries a maximum term of imprisonment of 20 years. In addition, Leake is being charged with unlawfully possessing a firearm during the commission of a drug trafficking offense in violation of

(c)(1). Thus, these three offenses all create a rebuttable presumption in favor of detention. Leake is also charged with unlawful possession of a firearm as a convicted felon in violation of

(g), which does not, on its own, carry a rebuttable presumption in favor of detention. 3 And even if the defendant rebuts the presumption in favor of detention, the court must

still evaluate the section 3142(g) factors in order to determine where there is a

condition or combination of conditions that could reasonably assure the defendant’s

appearance and the safety of the community. See United States v. Hunt,

(D.D.C. 2017) (“Assuming that defendant has come forward with some

credible evidence to counter the presumption, the Court must then consider all of the

factors set forth in section 3142(g)[.]”); see also United States v. Simpkins,

(D.C. Cir. 1987) (internal quotation marks and citation omitted) (holding that a

finding that detention is required to prevent a defendant’s flight “need only be

supported by a preponderance of the evidence,” while a finding that detention is

required for the “safety of the community” requires “clear and convincing evidence” ) .

Leake does not appear to offer evidence to rebut the statutory presumption of detention

directly, but his original emergency motion states that he is “a lifelong DC resident,

active father of two children, and has substantial ties to the community and their

school.” (Def.’s Mot. at 20.) Assuming, arguendo, that these statements are sufficient

to rebut the statutory presumption of dangerousness, the record nevertheless clearly

demonstrates that the section 3142(g) factors continue to weigh in favor of Leake’s

detention, despite the fact that COVID-19 is now prevalent in the D.C. Jail and may

pose a heightened risk of harm due to his asthma.

With respect to the first two section 3142(g) factors—the nature and

circumstances of the charged offenses and the weight of the evidence, see

(g)(1), (2)—Leake is charged with serious and dangerous offenses, including

unlawful possession with intent to distribute both cocaine base and heroin, and

possession of a firearm during a drug trafficking offense in violation of section

924(c)(1) (see Indictment, ECF No. 1), and the latter carries a five-year mandatory

4 minimum sentence, see

(c)(1). This Court has held an evidentiary

hearing with respect to Leake’s pending motion to suppress (see Minute Entry of Mar.

5, 2020), and the Government has strong evidence to support the charges, including

body worn camera footage in which Leake appears to be holding a packet of drugs at

the time that the officer approached him. The video also amply demonstrates that “not

only did Leake actively resist being arrested, [but] he was also carrying a gun on his

person at the time of his apprehension.” Leake,

, at *2. Therefore,

the first two factors of section 3142(g) plainly weigh in favor of detention. 3

The third factor—the defendant’s history and characteristics, see

(g)(3)—is a somewhat closer call, but still weighs in favor of pretrial detention.

Even though Leake is a “lifelong DC resident” and “father of two” with “substantial ties

to the community” (see Def.’s Mot. at 2), he also has a significant and substantial

history of non-compliance with his conditions of release, which in and of itself warrants

a finding that no conditions of release could assure the safety of the community.

Indeed, Leake was on supervision for a 2016 firearms conviction when he was arrested

for the instant offense, and at the time of the events that gave rise to that offense, he

was on supervision for a firearms offense that occurred in 2011. Leake,

, at *2. The Court also observes that Leake’s children and substantial ties to

the community were apparently insufficient to deter him from possessing illegal

controlled substances and a loaded firearm in a laundry room that was literally across

the hallway from the daycare center that housed the after-school program that his

daughter attends. (See Hr’g Tr., ECF No. 30, at 28:7–12.)

3 This characterization of the government’s evidence does not forecast the outcome of the dispute over Leake’s motion to suppress, because the Court’s reflections relate solely to the detention factor’s focus on the strength of the evidence against a defendant, which assumes its admissibility. By contrast, Leake’s motion to suppress asks the Court to exclude this evidence regardless of (and indeed, perhaps, because of) its tendency to incriminate the defendant. 5 Thus, although this Court is mindful that Leake’s asthma puts him at higher risk

of injury from COVID-19 if he is detained in D.C. Jail, it is clear that, on balance,

Leake’s history strongly suggests that he would be a danger to the community if he is

released, and thus, the section 3142(g)(3) factor weighs in favor of detention, and the

fourth detention consideration—i.e., “the nature and seriousness of the danger” posed

by Leake’s release,

(g)(4)—does as well. See also Leake,

, at *2 (determining that Leake’s release “would pose a significant danger to

the community” because of his prior resistance when confronted by law enforcement,

his possession of narcotics and a firearm within a communal space, and his history of

non-compliance with conditions of supervision).

In short, the Court finds, by clear and convincing evidence, that all four of the

section 3142(g) factors support the conclusion that there are no conditions or

combination of conditions that can reasonably assure the safety of the community if

Leake is released, which means that the reopening of Leake’s detention hearing yields

no benefit to him because the outcome of the detention inquiry remains the same.

II.

Leake’s other supplemental arguments—that his asthma makes it necessary for

him to be released into his sister’s custody under section 3142(i) in light of the COVID-

19 pandemic (see Def.’s Renewed Mot. at 2), and that it is now clear that continued

detention violates Leake’s constitutional rights given that “[a]t least 140 inmates have

now contracted the disease” (id.)—fare no better. The Court cannot conclude that

Leake’s having mild, intermittent asthma inside a detention facility where COVID-19 is

present, standing alone, is a sufficiently compelling reason to necessitate his release,

and this is especially so given the recent court order requiring D.C. DOC to take

specific steps to protect persons inside the D.C. Jail, see Banks v. Booth, No. 20-CV-

6 849 (CKK),

, at *13–15 (D.D.C. Apr. 19, 2020), as well as the

absence of any contention that Leake’s condition is not being treated in jail (compare

Def.’s Renewed Mot. at 1 (noting that Leake has an inhaler in his possession) with

Dabney,

, at *1 (describing defendant’s assertion that infirmary

would not replace inhaler).) 4 Leake has also failed to establish that the proposed

temporary custodian—his sister—would be an “appropriate person” to take custody of

him, either in fact or within the meaning of the statute. See Leake,

,

at *4 (explaining that “there is ample reason to doubt that Congress intended for

‘another appropriate person’ to be anyone other than a law enforcement officer”); see

also United States v. Lee, No. 19-CR-298 (KBJ),

, at *7 (D.D.C. Mar.

30, 2020) (explaining that a “motion for release [under § 3142(i)] must address how [a

proposed custodian] would be an ‘appropriate person’ within the meaning of section

3142(i)”). And given that Leake has also failed to provide any new evidence or

information that demonstrates “that a constitutionally cognizable deprivation is

presently occurring[,]” or that D.C. DOC “is deliberately indifferent to the needs and

circumstances of the people who are in their custody[,]” id. at *5, the Court has no basis

on which to alter its previous finding that Leake’s constitutional rights have not been

violated, see id.

III.

For the forgoing reasons, this Court cannot conclude that Leake’s release from

pretrial detention is warranted, despite the reopening of the detention inquiry due to his

4 In addition, Leake’s medical records, which D.C. DOC has provided directly to this Court, reflect that Leake has recently been subject to quarantine and is being monitored for symptoms of COVID-19, which suggests that D.C. DOC is aware of the risks to Leake in particular and is being responsive to concerns about his exposure to the virus. 7 established asthma and the additional arguments that are presented in his Supplemental

Motion for Release. Consequently, it is hereby

ORDERED that the Defendant’s supplemental motion (see ECF No. 40) is

DENIED.

Date: May 10, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

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