United States v. Kent, Criminal No. 20-cr-209 (CRC)/(ZMF)

• Decision Date: 26 October 2020
• Docket Number: Criminal No. 20-cr-209 (CRC)/(ZMF)
• Citation: 496 F.Supp.3d 500
• Parties: UNITED STATES of America v. Ronald Bernard KENT, Defendant.
• Court: U.S. District Court — District of Columbia

496 F.Supp.3d 500

UNITED STATES of America

v.Ronald Bernard KENT, Defendant.

Criminal No. 20-cr-209 (CRC)/(ZMF)

United States District Court, District of Columbia.

Signed October 26, 2020

Kimberly Louise Paschall, Mary Lyle Dohrmann, U.S. Attorney's Office, Washington, DC, for United States of America.

Nabeel Kibria, Ervin Kibria PLLC, Tony W. Miles, Federal Public Defender for the District of Columbia, Washington, DC, for Defendants.

DETENTION MEMORANDUM

Zia M. Faruqui, United States Magistrate Judge At the conclusion of a detention hearing, and upon consideration of the proffers and arguments of both parties, as well as the entire record, the Court ordered the 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." 18 U.S.C. § 3142(i)(1).

PROCEDURAL HISTORY

On September 25, 2020, Metropolitan Police Department (MPD) officers arrested the Defendant, and the next day the Court issued an arrest warrant pursuant to a criminal complaint charging him with one count of 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). On September 28, 2020, the Defendant made his initial appearance. The United States requested a detention hearing pursuant to:

- 18 U.S.C. § 3142(d)(1)(A)(iii), which requires the Court to temporarily detain a defendant who is on probation or parole;

- 18 U.S.C. § 3142(f)(1)(D), which authorizes a detention hearing where a defendant is charged with a felony and has certain prior qualifying convictions; and

- 18 U.S.C. § 3142(f)(1)(E), which authorizes a detention hearing where a defendant is charged with a felony involving a firearm.

The Court granted the government's motion and proceeded immediately to the detention hearing.

FINDINGS OF FACT

On September 25, 2020, MPD officers responded to a location in Southeast, Washington, District of Columbia, based on an anonymous report that an unresponsive individual was lying under a vehicle.¹ See ECF No. 1 (Compl., Stmt. of Facts). D.C. Fire Department members arrived first to the scene, where they found the Defendant unconscious. See id. They administered Narcan²

to resuscitate him. See id. The Fire Department members found a firearm loaded with one round of ammunition in the chamber and twelve rounds in the magazine in the Defendant's waistband, which they removed while he was still unresponsive. See id. The firearm was a 45mm semi-automatic pistol. See id. When the MPD officers arrived, they saw the Defendant lying on the ground and regaining consciousness. See id.

In 2012, the Defendant was convicted of Accessory After the Fact: Assault with Intent to Commit Robbery While Armed. See ECF No. 2 (Pretrial Services Rpt.) at 3. In 2014, the Defendant was convicted of Second-Degree Murder and Use of a Handgun/Crime of Violence. See id. at 2–3.

LEGAL STANDARD

The Bail Reform Act provides that if "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)(1). A detention decision based upon the defendant's dangerousness to the community must be supported by "clear and convincing evidence." 18 U.S.C. § 3142(e)(1), (f) ; see also Smith , 79 F.3d at 1209. In contrast, a detention decision based upon a "risk of flight ... need only be supported by a ‘preponderance of the evidence.’ " United States v. Simpkins , 826 F.2d 94, 96 (D.C. Cir. 1987) (quoting United States v. Vortis , 785 F.2d 327, 329 (D.C. Cir. 1986) (per curiam)).

Pursuant to 18 U.S.C. § 3142(g), the factors considered in deciding detention 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. 18 U.S.C. § 3142(g).

ANALYSIS

The Court finds that Defendant should be detained pending trial because his release presents a danger to the community that cannot adequately be mitigated by any conditions or combination of conditions.

A. Nature and Circumstances of the Charged Offense

"In determining the nature and circumstances of the offense charged, the Bail Reform Act requires taking into consideration whether the offense is a crime of violence or involves a firearm." United States v. Ausby , No. 72-CR-67-BAH, 2019 WL 2452988, at *3 (D.D.C. June 11, 2019) (citing 18 U.S.C. § 3142(g)(1) ). The Defendant was found in the community while apparently under the influence of a controlled substance—as evidenced by his response to the administration of Narcan—with a loaded firearm on his person. "[C]arrying a loaded firearm—especially if the carrier has a violent history ... has the great potential to escalate into violence," United States v. Cole , 459 F. Supp. 3d 116, 120 (D.D.C. 2020). "If, as the Government alleges, [the Defendant] was under the influence of ... opiates at the time of the offense, this only heightens the risk of violence," id. Notably, the firearm recovered from the Defendant's person had a round already chambered, making the circumstances even more troubling. See United States v. Jackson , No. 17-CR-175-PP, 2018 WL 4829198, at *14 (E.D. Wis. Oct. 4, 2018) (noting in detention order that the defendant possessed "a loaded gun with a round in the chamber and an extended magazine"); see also United States v. Muschetta , 118 F. Supp. 3d 340, 345 (D.D.C. 2015) (same). "Of particular significance is that Defendant was on supervised release at the time of his arrest in this matter," United States v. Washington , No. 07-CR-131-13-JR/DAR, 2007 WL 9710629, at *2 (D.D.C. Aug. 3, 2007). This factor weighs in favor of detention.

B. The Weight of the Evidence Against the Person

i. Evidence of Charged Conduct

The weight of the evidence that the Defendant possessed a firearm is very strong. Fire Department members directly observed the Defendant lying on the ground unconscious with a firearm in his waistband, which they recovered and emptied. See ECF No. 1 (Compl., Stmt. of Facts). This factor weighs in favor of detention. See United States v. Howard, No. MAG 20-181-BAH, 2020 WL 5642288, at *3 (D.D.C. Sept. 21, 2020) (finding the weight of evidence against the defendant "is strong and favors detention[,] [because] [t]he loaded firearm was discovered directly on defendant's person" and those facts were confirmed by officer's body camera footage); United States v. Riggins , 456 F. Supp. 3d 138, 145 (D.D.C. 2020) (finding the weight of evidence favored detention where "[a]ccording to the Government's unrebutted description of the event, [defendant] was found with the firearm on his person").

The Defendant argued that the evidence against him is weak, as he was unconscious at the time the firearm was recovered. Whether Defendant was voluntarily in possession of the firearm or was under the influence of a substance to such extent that he was unable to form the requisite mens rea for a conviction is a triable issue. The Defendant emphasized that the firearm was removed from his person while he was unconscious, and there is no evidence as to how it got on his person in the first place. However, the undersigned notes that Defendant proffered no plausible, alternative explanation for how the firearm came to be in his waistband.

ii. Evidence of the Person's Guilt

"Defense counsel's suggestion that this weight-of-the-evidence analysis now relates only to an assessment of record evidence concerning the likelihood that the person will fail to appear or will pose a danger finds no support in this jurisdiction," United States v. Wiggins , No. 19-CR-258-KBJ, ––– F.Supp.3d ––––, ––––, 2020 WL 1868891, at *6 (D.D.C. Apr. 10, 2020) (internal quotation marks and citations omitted).³ "Nor could it, given that the ‘relevant statutory language does not focus on the evidence of danger to the community ...; rather, it requires that the judicial officer consider the "weight of the evidence against the person [.]" ’ " Id. (quoting United States v. Taylor , 289 F. Supp. 3d 55, 66 (D.D.C. 2018) (quoting 18 U.S.C. § 3142(g)(2) ) (emphasis in original)). "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." United States v. Taylor , 289 F. Supp. 3d 55, 66 (D.D.C. 2018).⁴ "[R]eading 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[,]" because the fourth factor directs an inquiry as to dangerousness. United States v. Jaffee , No. 19-CR-88-RDM, 2019 WL 1932549, at *5 (D.D.C. May 1, 2019) (citing Marx v. General Revenue Corp. , 568 U.S. 371, 383–85, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013) ); see also Ausby , 2019 WL 2452988, at *4 n.3 (noting that the fourth factor, not second factor, requires consideration of dangerousness) (citing Taylor , 289 F. Supp. 3d at 66 ). Courts have regularly applied this standard. See, e.g. , United States v. Cruz-Hernandez , 422 F. Supp. 3d 157, 161 (D.D.C. 2019) (Judge Kollar-Kotelly looked to strength of evidence of defendant's guilt); United States v. Slatten , 286 F. Supp. 3d 61, 68 (D.D.C. 2017), aff'd , 712 F. App'x 15 (D.C. Cir. 2018) (same, Lamberth, J.); United States v. Samuels , 18-CR-144-RC/GMH, 2018 WL 2304787, at *5 (D.D.C. May 21, 2018) (same, Harvey, Mag. J.); United States v. Mercer , 4 F. Supp. 3d 147, 150 (D.D.C. 2013) (same, Huvelle, J.); United States v. Hassanshahi , 989 F. Supp. 2d 110, 115 (...