US v. Dabney Govt Brief Opposing Pretrial Release

Case 1:20-cr-00027-TJK Document 22 Filed 04/01/20 Page 1 of 20
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :

:
v. : CASE. NO. 20-cr-27 (KBJ)
:
:
DAVON DABNEY, :
Defendant. :
GOVERNMENT’S OPPOSITION TO DEFENDANT’S

REQUEST FOR REVIEW OF ORDER OF DETENTION
The United States of America, by and through its attorney, the United States Attorney for
the District of Columbia, respectfully submits this opposition to the defendant’s Motion for
Reconsideration of Pretrial Detention (ECF No. 20). For reasons stated below, the government
submits that the motion should be denied. In support, the government relies on the following
factual and legal authority, as well as any that may be offered at a hearing on these motions.
PROCEDURAL HISTORY
Defendant Dabney, hereinafter referred to as the defendant, is charged by indictment with
one count of Unlawful Distribution of Fentanyl, pursuant to 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). Upon the defendant’s arrest in this matter, the government requested the defendant’s
pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(C), which creates a rebuttable presumption
in favor of detention in cases involving an offense for which a maximum term of imprisonment of
ten years or more is prescribed under the Controlled Substances Act, and 18 U.S.C. §
3142(d)(1)(A)(i), which allows the Court to order temporary detention to permit revocation of
release if a person is on release pending trial for a felony under Federal, State, or local law.1 At a
1
On October 7, 2019, the defendant was arrested on the charge of Carrying a Pistol Without a
1
detention hearing on February 3, 2020 before Magistrate Judge Harvey, the defendant conceded
detention and waived his right to written findings of fact and conclusions of law supporting
detention.
On February 27, 2020, the parties appeared before this Court and set a status date for April
17, 2020.2 On March 27, 2020, the defendant filed the instant motion for review of the defendant’s
order of detention, citing the outbreak of COVID-19 in the Washington, D.C. area as the changed
circumstances requiring review. The defendant also raises the February 28, 2020, dismissal of the
weapons-related case against him in D.C. Superior Court as a changed circumstance that weighs
in favor of release.
ARGUMENT
A defendant must be detained pending trial, if the Court determines 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[.]” 18 U.S.C. § 3142(e). A court may reconsider
its decision regarding pretrial detention “at any time before trial if the judicial officer finds that
information exists that was not known to the movant at the time and that has a material bearing on
the issue” of whether there exist conditions for release that would “reasonably assure the
appearance of such person as required.” United States v. Bikundi, 73 F. Supp. 3d 51, 54 (D.D.C.
2014) (citing 18 U.S.C. § 3142(f)(2)(B); accord United States v. Moore, No. 13–330, 2014 WL
1273439, at *1 (D.D.C. Mar. 31, 2014)). Because the defendant has been charged with an offense
for which the maximum term of imprisonment is ten years or more under the Controlled
License and subsequently charged in Superior Court Case number 2019 CF2 012921.
2
Due to the ongoing court closure, this status hearing is pending rescheduling for a date yet to be
determined in late May of 2020. See ECF No. 19 (Notice Regarding Proposed Scheduling).
2
Substances Act, there exists a rebuttable presumption that no condition, or combination of
conditions, can effectively ensure the defendant’s appearance in this case and otherwise protect
the community, pursuant to 18 U.S.C. § 3142(e)(3)(B).
The key question, therefore, is whether there is anything about the defendant in
particular, rather than the mere existence of COVID-19 as a generality, that uniquely presents
this Court with such changed circumstances that would warrant reconsideration of detention. In
this case, the new information on the COVID-19 pandemic does not materially bear on any of
the detention factors set forth in 18 U.S.C. § 3142(g) under the circumstances here. Nor is the
mere existence of the pandemic, in and of itself, a factor that overcomes the rebuttable
presumption in favor of detention.
Furthermore, as explained further below, the dismissal of the pending case against the
defendant in Superior Court provides no basis to modify the defendant’s detention. Additionally,
even in light of the outbreak of COVID-19 in the Washington, D.C. area, there are no conditions
or combination of conditions that will reasonably assure the safety of the community if the
defendant is released. The mere possibility of contraction of COVID-19 is not a change in
circumstances that necessitates revisiting the initial detention order at this juncture, nor does it
constitute a compelling reason necessitating any form of temporary release.
I. The Bail Reform Act factors remain in favor of detention and the presumption
has not been rebutted.
The Bail Reform Act requires the judicial officer to assess various factors, as described
below, before releasing or detaining a defendant. 18 U.S.C. § 3142(g). The determination that a
criminal defendant must be detained pursuant to subsection (g) “may be reopened” at any time
prior to trial if new information surfaces that has a material bearing on the potential conditions of
3
release that may reasonably assure the defendant’s appearance in court and the safety of the
community. 18 U.S.C. § 3142(f). Section 3142(i) also provides a distinct mechanism for
temporarily releasing a detained defendant, in a manner that does not revisit the initial bond
determination, but rather if a court finds that such release is “necessary for preparation of the
person’s defense or for another compelling reason.” 18 U.S.C. § 3142(i). Before turning to the
defendant’s claim that the COVID-19 pandemic is a compelling basis to authorize release, we first
address the §3142(g) factors as they apply to this case.
The government respectfully submits that each of the four §3142(g) factors – the nature
and circumstances of the offense, the weight of the evidence, the defendant’s history and
characteristics and the defendant’s danger to the community – all weigh heavily in favor of
detention in this case. They are discussed in detail in the government’s Memorandum in Support
of Pretrial Detention (ECF No. 8), which the government incorporates by reference and attaches
here as Exhibit A. The government will not reiterate all of those arguments at length again; rather,
the government will briefly address each of the factors, in light of the defendant’s argument that
the dismissal of his Superior Court case and the impact of COVID-19 on the jail and judicial
system are sufficient to justify a modification of detention.
First, with respect to the nature and circumstances of the charged offense, this factor weighs
heavily in favor of detention. The defendant is currently charged with one count of Unlawful
Distribution of Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The charge
arises from the defendant’s personal and direct participation in the sale of narcotics to an
undercover officer with the Metropolitan Police Department (“MPD”) by completing a drug sale
initially begun by his co-defendant Tyree Marshall, who was thereafter arrested in possession of a
4
loaded firearm and a significant quantity of narcotics. After the defendant provided the remaining
narcotics to the undercover officer, he took possession of payment for the narcotics. At the time of
his arrest, which occurred when the vehicle in which he was a passenger was stopped, the
defendant was found with a loaded 40 caliber firearm at his feet. Under the Bail Reform Act, 18
U.S.C. §§ 3142 et seq., “[t]he statutory language, as well as the legislative history, unequivocably
establishes that Congress intended to equate traffic in drugs with a danger to the community.”
United States v. Strong, 775 F.2d 504, 506 (3d Cir. 1985). Significantly, the narcotic at issue here
is fentanyl – an incredibly dangerous controlled substance. Similarly, the weight of the evidence
also weighs in favor of detention. The defendant’s interaction with law enforcement, including his
transfer of narcotics in exchange for payment, was audio and video recorded through the use of a
hidden camera placed inside the undercover officer’s vehicle, where the transaction occurred. See
Exhibit B (screenshot from video recording). Additionally, the narcotics transaction involved and
was witnessed by two undercover officers who would each be able to identify the defendant.
With respect to the third factor, the history and characteristics of the defendant, the
government respectfully submits that this also favors detention. In his motion, the defendant notes
that he is only 21 years old, has no adult convictions, is a lifelong resident of D.C., and is the father
of one child. See ECF No. 20 at 5. He also correctly states that, with the recent dismissal of his
firearms case in Superior Court, he no longer has any other pending cases. It should first be noted
that, at the time of his arrest in this case, the defendant was on release in Superior Court case
number 2019 CF2 012921, in which he was charged with Carrying a Pistol Without a License,
Possession of a Large Capacity Ammunition Feeding Device, and related weapons charges. On or
about February 28, 2020, that case was dismissed at the request of the government after the
5
defendant filed a motion to suppress evidence based on a Fourth Amendment violation, to which
the government did not respond. Although the government may have ultimately decided not to
contest the validity of the arrest in that case, there is nothing known to the government that
contradicts the underlying facts of the defendant’s arrest for Carrying a Pistol Without a License
on October 7, 2019. In other words, there are no new facts or circumstances which contradict the
fact that the defendant was found in actual possession of an illegal firearm on that date. See Exhibit
C (MPD Gerstein for 2019 CF2 012921).
Nor does the dismissal of the Superior Court indictment justify or mitigate the defendant’s
inability to abide by conditions of release in that case, as demonstrated by the fact that he was
arrested on January 28, 2020, and charged with dealing fentanyl while he was on release and under
the supervision of another court. Although the defendant argues that he performed successfully on
GPS monitoring while on supervision in that case, which led to the removal of the GPS
requirement, it is clear, based on his arrest for the instant offense, that his “record of compliance”
on supervision tells this Court little about his willingness or ability to actually comply with
conditions of release. This is even more troubling in light of fact that a loaded .40 caliber handgun
was at Defendant Dabney’s feet when he was arrested on January 28, 2020. In sum, at his young
age, the defendant has now been arrested twice for serious charges – weapons and narcotics related
– both within a fairly short time period and one while he was under pretrial supervision by another
court.
Respectfully, despite the dismissal of the indictment in Superior Court, the analysis of the
§3142(g) factors reveals nothing that counsels in favor of release. If anything, a review of these
factors reminds the Court of the defendant’s danger if released. See 18 U.S.C. § 3142(g)(4)
6
(requiring the Court to first evaluate “the danger” that “would be posed by the person’s release.”).
Nor has the defendant offered any credible evidence to counter the statutory presumption in favor
of detention.
Given these decidedly important factors, the question now turns to what weight to give to
the public health crisis that the world currently faces, and how such a crisis should affect this
Court’s decision to detain the defendant. As this Court recently found, “the generalized risk of
harm to detainees does not yet warrant release of healthy individuals who otherwise would have
been detained.” United States v. Hartley Lee, 19-cr-298 (KBJ) (D.D.C. March 30, 2020).
II. While the COVID-19 pandemic is dangerous, it is not a changed circumstance

that necessitates reconsideration of bond.
The government respectfully submits that the existence of COVID-19 is not a changed
circumstance that warrants a reconsideration of bond as to the defendant. To start, the defendant
has not averred any underlying health condition that ties the virus to himself. Nor has the
government seen any medical documentation establishing a link between COVID-19 and the
defendant. To be clear, the government does not downplay the risks associated with COVID-19,
but the existence of the virus in and of itself does not trigger automatic release under these
circumstances. Rather, the Court is still required to assess the defendant’s particularized factors in
determining whether to release him. See Lee, 19-cr-298 (KBJ) (D.D.C. March 30, 2020) (“[T]he
relevant statutory inquiry is not the benefits that a defendant’s release would bring about (however
significant) or the harms that his incarceration would cause (however substantial). Rather, the
statute requires the Court to evaluate “the danger” that “would be posed by the person’s release.”)
Thus, the COVID-19 pandemic has no material impact on any of the factors that are properly
7
considered and there is no additional basis to reopen the detention decision pursuant to 18 U.S.C.
§ 3142(f).
Section 3142(i) operates independently of the detention factors. Under this section, the
Court could release a defendant temporarily to the custody of another if it finds a “compelling
reason” that necessitates temporary release. Respectfully, the existence of the pandemic in and of
itself is not a compelling reason to justify release. Moreover, according to the D.C. Department of
Corrections (DOC), DOC appears to be have undertaken several steps to try to prevent the spread
of COVID-19 within its facilities.
The only real basis for the defendant’s request for release is the existence of the COVID-
19 pandemic. While the COVID-19 pandemic is obviously startling, the government still has a
duty to ensure the safety of the community and balance the security of others with the safety of the
defendant. In other words, unless this or any court is willing to release all defendants, or defendants
with verified vulnerabilities, regardless of their danger and/or risks, the Bail Reform Act still
provides a meaningful framework to analyze the defendant’s motion. The defendant’s chief
argument is that he is not safe at the jail and thus needs to be released. As part of this argument,
he notes that there is now an inmate who has tested positive for COVID-19 in the D.C. Department
of Corrections (DOC). Respectfully (and sadly), this should come as no surprise to the Court or
the parties. The idea that DOC would emerge unscathed from a global pandemic is doubtful. The
real inquiry is the balance of interests.
As this Court is likely aware through prior filings, the government has endeavored – on a
case-by-case basis and as a result of the public health crisis currently pending – to permit temporary
8
release pursuant to 18 U.S.C. § 3142(i) or 18 U.S.C. § 3145(c) to those who actually need release.3
Here, it is unclear as to how any of the circumstances cited in his motion, in this context, at this
time, and with this charge, necessitates release under these circumstances. Furthermore, the
defendant has not offered any rationale for why release into a community that is already affected
by the virus will protect either individual any more than their current placement at the Department
of Corrections.
The D.C. Jail
In preparing to respond to these and other similar motions, the United States Attorney’s
Office has consulted with DOC to obtain relevant information as to its handling of the public health
crisis, and passes this information along to the Court for its consideration. Indeed, this office
continues consulting with the DOC in light of the rapidly-changing situation. Based upon the
information provided to the government at present, it appears that DOC is handling the situation
as well as it can – no different than any organization in the United States that is trying to weather
this pandemic. Unless and until that changes, the government cannot endorse wholesale release of
dangerous defendants.4
3
For example, in United States v. Carl Courtney, 19-cr-413 (TJK), the government consented to
release where the defendant had open wounds and was scheduled for surgery. In United States v.
Larry Key, 19-cr-292 (JDB), the government consented to release due to the defendant’s advanced
age, his lung, heart, and kidney disease, and current multiple hospitalizations. The government is
sincerely trying to balance the danger of the offender and the pandemic, but cannot ignore a
person’s record, their conduct, or their alleged or unverified maladies.
4
The government is aware of reports from local unions and the Fraternal Order of Police that DOC
is derelict of its duties to its employees. See March 29, 2020 Press Release from Fraternal Order
of Police Department of Corrections Labor Committee (describing DOC’s failures to follow CDC
guidance). On March 30, 2020, the ALCU and D.C. Public Defender Service sued DOC for what
it claims are violations of the Fifth and Eighth Amendments. That case is assigned to Judge Colleen
Kollar-Kotelly. DOC has not yet responded to the allegations and complaint. While the
9
Specifically, as of March 27, 2020, according to DOC, DOC has done the following to
ensure the safety of its incarcerated population: (1) banned all non-attorney visits to limit
unnecessary exposure; (2) implemented screening processes for all visitors and incoming inmates,
including attorneys and staff; such screening includes assessing visitors and inmates for symptoms,
sanitizing stations, etc.; (3) if incoming residents at a DOC facility fail the screening process, they
are given a mask and taken to medical to determine if they require further hospitalization or testing.
Moreover, if there is concern that an inmate has COVID-19, the inmate will be placed into a single
cell in a specialized unit, where the inmate’s only contacts are with medical staff, who will obtain
COVID-19 testing within 3-4 days; (4) DOC has implemented an incident command program,
where each day, DOC units meet to discuss ongoing processes to combat the virus; (5) DOC sends
out daily reminders to its staff about taking preventative, prophylactic measures to avoid infection,
such as washing hands, using sanitizer, etc.; (6) DOC has constant meetings with the D.C.
Department of Health to ensure its procedures meet both local and national standards, to include
following updated recommendations of the Centers for Disease Control; (7) DOC has continued
to engage with the USAO and the local Public Defender Service to ensure continuity of operations;
(8) DOC checks and rechecks its ventilation system to ensure the air quality in the facilities; (9)
DOC is tracking and ordering additional cleaning and sanitation kits (for example, as of March 17,
2020, the D.C. jail had 55,200 bars of fresh soap, which it dispenses weekly to each inmate), as
well as protective gear, and it has mandated cleaning at its facilities every two hours; (10) DOC
would like to limit the number of inmates coming into its facility at any given time; and (11) upon
government shares the concerns of others, we have been unable to independently verify these
claims. We will continue to update the Court of all information – positive or negative – as the
information is made available to the U.S. Attorney’s Office.
10
information and belief, DOC has the capacity to quarantine near 100 inmates, although that number
is fluid and subject to change. See also Coronavirus Prevention, D.C. Department of Corrections
(March 27, 2020), https://perma.cc/L59Z-WG43 (explaining how DOC has suspended in-person
visitations, enhanced cleaning efforts, ordered additional sanitation supplies, and diminished out-
of-cell recreational time in response to the threat of COVID-19). While the government shares the
defendant’s concerns over the potential risk to the prison population, it remains unclear to
undersigned counsel what, if any, precautions this defendant would be able to put in place to
protect himself and those around him from COVID-19 if he were to be released. See also United
States v. Edwards, 20-mj-50, at *6 (RMM) (March 30, 2020 D.D.C.) (“Although [the defendant’s]
alleged health problems may make him at heightened risk if he contracts the coronavirus, he would
be at risk even if he were not incarcerated.”). Moreover, any such circumstances must also protect
the public from a dangerous defendant who appears committed to—and undeterred from—
reoffending.
Indeed, while reports of positive cases within the Correctional Treatment Facility (CTF)
have increased, such reporting would also seem to support a conclusion that steps are being taken
to protect the population currently incarcerated there. Specifically, on March 26, 2020, the
government learned that DOC reported its first COVID-19 positive test at the Correctional
Treatment Facility (CTF) to the courts. The inmate was immediately placed into isolation and
monitored. DOC and the D.C. Department of Health also began to contact trace, to determine if
anyone had contact with the inmate. DOC has previously handled possible COVID-19 cases with
similar procedures.5 As of March 31, 2020, the government learned that the total number of
5
For example, two weeks ago, a Deputy United States Marshal in D.C. Superior Court tested
11
positive persons is 6 and all have been placed in quarantine.6 As this Court is likely well aware,
the possibility of COVID-19 – a global pandemic – reaching DOC was always a realistic
possibility. But based on the information from DOC, DOC appears to be taking this pandemic
seriously, and complying with D.C. Department of Health mandates regarding how to handle
positive tests and symptomatic patients. Respectfully, DOC cannot be reasonably expected to stave
off a pandemic that has affected all aspects of life in the United States.
It is undeniable that the government and the Court are faced with the difficult challenge of
how to balance the security and safety of the community with the safety of the defendant. As of
this moment, the government submits that defendant has not established that he has particularized
health condition that puts him at heightened risk; nor has the defendant put forth a bona fide
alternative to incarceration at DOC that would materially reduce the likelihood that defendant
would contract and suffer serious health consequences from COVID-19. The government must
also emphasize that the court must not lose focus on the importance of protecting the public and
the § 3142 factors that weigh heavily in favor of incarceration here.
Legal Framework for Detained Defendants
This is not the first time a court has considered bond based on meaningful health
emergencies. In United States v. Johnston, No. 17-46 (RMM), 2017 WL 4277140 (D.D.C. Sept.
27, 2017), the Court released a defendant for a limited purpose: to obtain surgical treatment. “This
positive for COVID-19. As a result of this positive test, DOC followed its protocols outlined
above. Every inmate who might have been exposed to the deputy was placed in quarantine. Of the
quarantined inmates, a single inmate became symptomatic, and later tested negative for COVID-
19. The remaining inmates nevertheless remained in quarantine to protect the remainder of DOC’s
population, until the quarantine was safely lifted.
6
This number is likely to change as more tests are conducted.
12
is a temporary release to home detention that is narrowly tailored to respond to the exigent and
unusual circumstances presented by [the defendant’s] cancer diagnosis and the status of his testing
and treatment.” Id. at *9. When the district court has previously reviewed a motion for release
from pretrial detention for health conditions that can be treated at the jail, the court denied the
motion, citing that a defendant’s “history and characteristics” is only one of four factors that the
Court must consider in determining the appropriateness of pretrial detention. United States v.
Parker, 517 F. Supp. 2d 375, 377 (D.D.C. 2007) (defendant’s medical conditions, including
diabetes, asthma and hypertension, for which he required ongoing medication and treatment,
cannot be dispositive in considering motion for release).7
As defendants continue to ask for release based on COVID-19, courts in this district have
begun to assess the validity of the various claims related to COVID-19 or the DOC. For example,
in United States v. Hill, 19-cr-260 (APM) (D.D.C.), the defendant filed a motion for release. The
Court denied the defendant’s motion for release, without a hearing, noting:
Defendant's release would present a danger to the community and that there is no
condition or combination of conditions that would reasonably assure the
community's safety. Although the court recognizes the danger presented by the
coronavirus outbreak, and that older populations are more vulnerable, on balance
release is not warranted at this time. The Department of Corrections is taking
precautions to protect the inmate population, and there is not any reported case
within the inmate population (to the court's knowledge). The court is prepared to
reconsider this order should conditions change at the jail.
Id., Minute Order, March 19, 2020; But see United States v. Meekins, 18-cr-222 (APM) (D.D.C.
March 31, 2020) (finding that the balance of factors weighs in favor of release, considering
COVID-19 pandemic and the defendant’s underlying health conditions). In United States v. Smith,
7
See also United States v. Rebollo-Andino, 312 F. App’x 346, 348 (1st Cir. 2009) (medical
conditions can warrant temporary release under § 3142(i)).
13
19-cr-324 (BAH) (D.D.C. March 23, 2020), the Court – the same Court that issued Standing Order
20-9 that suspended most courthouse operations as a result of the pandemic – remarked that “[t]he
risk presented by the pandemic is serious, and the Court acknowledges that risk may be greater in
a jail environment . . . .” But the Court also noted that:
[T]he D.C. Department of Corrections has taken aggressive precautions to prevent

the spread of the virus within the facility where defendant is detained . . . including
suspending all in-person visits, programming, and volunteer activities within its
facilities, enhanced cleaning efforts, especially within common areas, and vigilant
medical personnel on alert for symptoms and prepared to isolate and treat
symptomatic residents, see Department of Corrections Notice, Updated: March 14,
2020, available at https://doc.dc.gov/page/coronavirus-prevention. Although
defendant is in an age group that may be more susceptible to the virus . . . this risk
pertains whether the defendant were released or detained, and any heightened risk
posed by pretrial detention does not outweigh the presumption in favor of detaining
the defendant pretrial, nor does it alter the balance of the statutory factors Congress
prescribed for determining the propriety of detention, which all continue to weigh
heavily in favor of detention.
Id. There is no reason to suggest that in several days, despite the existence of positive tests, that
DOC has abandoned its protocol and seeks to endanger its inmates.
While several district courts have already opined on the COVID-19 pandemic, it is clear
that the analysis ultimately boils down to the defendant’s danger, even in cases involving
vulnerable health conditions. See, e.g., United States v. Jacob Jordan, 20-cr-55 (TFH) (D.D.C.
March 23, 2020) (acknowledging the risks associated with COVID but denying release); United
States v. Gonzalez, 20-cr-40 (BAH) (D.D.C. March 24, 2020) (denying release, noting the steps
taken by DOC to protect inmates); United States v. Antonio Tabron and Lamont Johnson, 18-cr-
112 (TFH) (denying release after trial); Lee, 19-cr-298 (KBJ) (denying release based on
generalized COVID-19 concerns); United States v. Parker, 19-cr-349 (APM) (D.D.C. March 30,
2020) (denying release after a plea despite Eighth Amendment claim); United States v. Watkins,
14
20-cr-19 (CRC) (D.D.C. March 31, 2020) (Minute Order) (highlighting the §3142 factors and
noting that a “generalized risk to otherwise healthy detainees” is not alone sufficient); But see
United States v. Harris, 19-cr-356 (RDM) (D.D.C. March 26, 2020) (releasing defendant in part
because of COVID-19 pandemic, along with the expert opinion signifying the defendant’s limited
danger); United States v. Jaffee, 19-cr-88 (RDM) (D.D.C. March 26, 2020) (releasing defendant
because of COVID-19 pandemic but noting his prior perfect compliance with his conditions of
release); United States v. Kofi Appiah and James Hutchings Jr., 19-cr-361 (BAH) (D.D.C. March
26, 2020) (releasing defendants because of underlying health conditions, including severe assault
at jail and verified asthma). A close reading of each case suggests that the particulars of the
defendant’s circumstances guide the analysis. The pandemic, alone, is not a but-for cause of the
defendant’s release, even under 18 U.S.C. § 3142(i).8
Opinions filed in neighboring districts are in accord.9 On March 17, 2020, Judge Paul
Grimm of the U.S. District Court, District of Maryland, issued a written memorandum opinion on
8
See also United States v. Cox, No. 19-cr-271, 2020 WL 1491180 (D. Nev. Mar. 27, 2020); United
States v. Green, No. 19-cr-304, 2020 WL 1477679 (M.D. Fla. Mar. 26, 2020); United States v.
Steward, No. 20-cr-52, 2020 WL 1468005 (S.D.N.Y. Mar. 26, 2020); United States v. Hamilton,
No. 19-cr-54, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020).
9
But see United States v. Stephens, 15-cr-95-AJN (S.D.N.Y. March 19, 2020) (COVID-19
outbreak and as well as a change in the facts of the case – a possible misidentification by an
eyewitness – necessitated release). In choosing to release the defendant, the Court noted the
defendant’s lack of a violent record, the weakened state of the government’s evidence, the failure
of the local jail to arrange legal calls in preparation of his defense, and the effective ban on legal
visits with limited exceptions as bases to implement release conditions. Id.
Notably, the Court recognized that its decision cannot be made simply because of COVID-19. See
id. at *6 n.3 (“The Court need not decide this additional factor [the current public health crisis]
here because its determination that release is necessary for the preparation of the Defendant’s
defense is sufficient under § 3142(i).”)
15
this very issue. United States v. Martin, 2020 WL 1274857, *2 (D. Md. March 17, 2020). Noting,
appropriately, that the Court “takes this [COVID-19] health risk extremely seriously,” the Court
nevertheless recognized that “resolving . . . an order of detention must in the first instance be an
individualized assessment of the factors identified by the Bail Reform Act.” Id. at *3. In addressing
the new issue raised by the defendant – COVID-19 – the Court nevertheless found that the
defendant’s health (his asthma, high blood pressure, and diabetes) was “insufficient to rebut the
proffer by the Government that the correctional and medical staff at [the local detention facility]
are implementing precautionary and monitoring practices sufficient to protect detainees from
exposure to the COVID-19 virus.” Id. at *4. Finally, the Court questioned the defendant’s
proposed use of GPS location monitoring even if the defendant was released subject to conditions,
finding that such monitoring “is not a limitless resource, nor its installation and monitoring by
United States Pretrial Services officers without risk to those personnel . . . given the current
recommendations regarding implementation of social distancing.” Id.; see also United States v.
Lewis, 19-cr-34-LMA-MBN (E.D. La. March 19, 2020) (“If anything, the COVID-19 pandemic
has reduced the availability of conditions to mitigate the risk to the community”).
In fact, the District of Maryland, Greenbelt Division – whose defendants are also detained
by DOC – has almost uniformly denied such petitions on similar, generalized grounds. See, e.g.,
United States v. Adams, 19-cr-257-003, at *3-4 (DKC) (D. Md March 25, 2020) (COVID-19 is
not the “kind of extraordinary reason for Mr. Adams’ release. The correctional and medical staff
at detention facilities continue to provide appropriate safeguards for health and safety of those
committed to their custody.”); United States v. Bilbrough, IV, 20-cr-33, at *4-5, 7 (TDC) (D. Md
March 20, 2020) (“D.C. Department of Corrections appears to be taking reasonable steps to
16
prevent and combat the spread of COVID-19 in its facilities. Although [the defendant] may still
be at an increased health risk [from diabetes] . . . this factor alone does not outweigh the other
factors.”); United States v. Brown, 16-cr-553 (RDB) (D. Md March 26, 2020) (denial of release
from BOP custody); United States v. Jefferson, 19-cr-487 (CCB) (D. Md March 23, 2020)
(“Precautionary measures have been implemented at CTF in light of the COVID-19 pandemic,”
denying release to an asthmatic defendant); United States v. Johnson, 17-po-9262 (TMD) (D. Md
March 20, 2020) (discussing general risk of exposure to COVID-19, but denial of release on other
grounds); United States v. Jones, 17-cr-582, at *2 (CCB) (D. Md March 20, 2020) (“CDF medical
personnel are adequately addressing Defendant’s medical needs” and the COVID-19 “risks are not
the sole determinant of whether detention is appropriate.”); United States v. Legard, 19-cr-137, at
*2-3 (PWG) (D. Md March 24, 2020) (Asthma alone was not a basis to release a defendant in light
of COVID-19 pandemic and that the measures at the D.C. jail are “in compliance with state and
federal guidelines regarding protective measures”); United States v. Parker II, 18-cr-344, at *4, 8
(TDC) (D. Md March 21, 2020) (discussing Deputy U.S. Marshal who tested positive for COVID-
19, crediting the defendant’s alleged health risks [prior aneurysm, prostate cancer, and present
diabetes], and noted that the D.C. Department of Corrections “has implemented prophylactic and
other measures in response to the COVID-19 virus.”); United States v. Perry, 14-cr-181, at *1-2
(GLR) (D. Md March 26, 2020) (denial of release from halfway house due to COVID-19, but on
statutory reasons, but also noting that the affidavit of Dr. Marc Stern “lack[ed] the case or
institution specificity to determine, with sufficient certainty, the health risks posed at the
institution.”). In fact, in United States v. Williams, 13-cr-544 (PWG) (D. Md March 23, 2020), the
Court even acknowledged that DOC has taken significant measures to stem the tide of the
17
pandemic, but that “[s]hould the unfortunate event occur, the correctional authorities have in place
a plan of action that should not be summarily embraced or discarded. Nor does it follow that a
presumption of release materializes without more details about the impact upon [the defendant]
directly.” Id. at *5. Perhaps most explicitly, “[t]he existence of the present pandemic, without
more, is not tantamount to a “get out of jail free” card. Not even for the older person being
detained.” Id. The Court thus denied a 67-year-old defendant emergency release.
Finally, while the COVID-19 virus is new, arguments based primarily on health concerns
are not. Courts have generally recognized that “it is a rare case in which health conditions present
an exceptional reason” to allow for release where otherwise detention would be warranted. United
States v. Wages, 271 F. App’x 726, 728 (10th Cir. 2008) (quotations omitted). The U.S. Attorney
General’s March 26, 2020 memorandum related to the “Prioritization of Home Confinement As
Appropriate in Response to COVID-19 Pandemic” does not change this calculus. As noted by the
memorandum (see Exhibit D), “there are some at-risk inmates who are non-violent and pose
minimal likelihood of recidivism and who might be safer serving their sentences in home
confinement rather than in BOP facilities.” Id. As part of the analysis in assessing whether inmates
should be granted home confinement, BOP was encouraged to look at, among other factors, the
“age and vulnerability” of the inmate; the inmate’s criminal history; whether the inmate has
“demonstrated a verifiable re-entry plan that will prevent recidivism and maximize public safety,
including verification that the conditions . . . upon release would present a lower risk of contracting
COVID-19 than . . . in his or her BOP facility”; and the assessment of the danger posted by the
inmate to the community. Id. The government’s filing does just that. Notably, the March 26, 2020
memorandum also counsels that “before granting any inmate discretionary release, the BOP
18
Medical Director . . . will, based on CDC guidance, make an assessment of the inmate’s risk factors
for severe COVID-19 illness, risks of COVID-19 at the . . . facility, as well as the risks of COVID-
19 at the location in which the inmate seeks home confinement.” Id. (Emphasis Added). The
defendant’s request generally summarizes the risk of COVID-19, but in no way establishes the
high bar described above, and how his placement in the community would benefit both him and
the community.10
The government appreciates the gravity of this global pandemic and is committed to
ensuring the safety and health of inmates like the defendant. But at this stage and at this time,
based on the information provided by DOC, DOC appears dedicated and willing to address this
public health crisis and no amount of bombastic rhetoric can yet affect that judgment.11 Whether
the Court analyzes this case under the “compelling reason” language of 18 U.S.C. § 3142(i) or the
“exceptional reason” standard of 18 U.S.C. § 3145(c), the defendant cannot demonstrate that his
release benefits the community. Moreover, the existence of the COVID-19 pandemic can certainly
factor into this analysis, but it cannot be dispositive, without more. Thousands upon thousands of
Americans will be affected by this crisis, both inside and outside of detention facilities. The inquiry
before this Court, today, is whether the Court can ensure the safety of the community, should the
defendant be released. Respectfully, that answer is no.
10
See id. (“You should grant home confinement only when BOP has determined . . . that transfer
to home confinement is likely not to increase the inmate’s risk of contracting COVID-19”).
11
The U.S. Attorney’s Office continues consulting with the DOC on a frequent basis in light of
the rapidly-changing situation.
19
CONCLUSION
Given the plans in place at the DOC and the danger that the defendant represents to the
community, the same community also affected by this illness, the government respectfully requests
that this Court deny the defendant’s motion for release.
Respectfully submitted,
TIMOTHY J. SHEA
United States Attorney
D.C. Bar No. 437437
By: /s/Gilead Light

GILEAD LIGHT
DC Bar No. 980839
ANDREA DUVALL
AR Bar No. 2013114
Assistant United States Attorneys
555 4th Street, N.W.
Washington, D.C. 20001
(202) 252-6880 (Light)
(202) 252-6745 (Duvall)
gilead.light@usdoj.gov
andrea.duvall2@usdoj.gov
Dated: April 1, 2020
20
Case
Case1:20-cr-00027-TJK
1:20-cr-00027-KBJ Document
Document22-1 Filed01/31/20
8 Filed 04/01/20 Page
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US v. Dabney Govt Brief Opposing Pretrial Release

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US v. Dabney Govt Brief Opposing Pretrial Release

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Case 1:20-cr-00027-TJK Document 22 Filed 04/01/20 Page 1 of 20

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA :

GOVERNMENT’S OPPOSITION TO DEFENDANT’S

Defendant Dabney, hereinafter referred to as the defendant, is charged by indictment with

one count of Unlawful Distribution of Fentanyl, pursuant to 21 U.S.C. §§ 841(a)(1) and

pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(C), which creates a rebuttable presumption

Substances Act, there exists a rebuttable presumption that no condition, or combination of

the community, pursuant to 18 U.S.C. § 3142(e)(3)(B).

presumption in favor of detention.

defendant is released. The mere possibility of contraction of COVID-19 is not a change in

constitute a compelling reason necessitating any form of temporary release.

address the §3142(g) factors as they apply to this case.

system are sufficient to justify a modification of detention.

Distribution of Fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The charge

C (MPD Gerstein for 2019 CF2 012921).

II. While the COVID-19 pandemic is dangerous, it is not a changed circumstance

of COVID-19 within its facilities.

real inquiry is the balance of interests.

The D.C. Jail

the § 3142 factors that weigh heavily in favor of incarceration here.

Legal Framework for Detained Defendants

cannot be dispositive in considering motion for release).7

a jail environment . . . .” But the Court also noted that:

[T]he D.C. Department of Corrections has taken aggressive precautions to prevent

defendant’s release, even under 18 U.S.C. § 3142(i).8

defendant be released. Respectfully, that answer is no.

that this Court deny the defendant’s motion for release.

By: /s/Gilead Light

Dated: April 1, 2020

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January 28, 2020 Controlled Purchase of Fentanyl (Charged)

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