United States v. Henry , 280 F. Supp. 3d 125 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal No. 17-216 (CKK)
TIFFANY HENRY, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
(December 1, 2017)
This matter comes before the Court upon the Government’s [8] Motion for Emergency
Stay and for Review and Appeal of Release Order with respect to Defendant Tiffany Henry
(“Henry”). 1 A federal indictment charges (1) Defendants Tiffany Henry (“Henry”), Angela M.
Cortez (“Cortez”), and Jeremy Albrecht (“Albrecht”) (collectively, “codefendants”) with
conspiracy to distribute and possess with intent to distribute marijuana and cocaine, in violation of
21 U.S.C. § 846, (2) Defendant Henry with unlawful use of a communication facility, in violation
of 21 U.S.C. § 843(c)(2)(A), (3) Defendants Henry and Cortez with unlawful distribution of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), (4) Defendants Henry, Cortez,
and Albrecht with unlawful possession with intent to distribute marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(D), and (5) Defendants Henry, Cortez, and Albrecht with unlawful
possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).
On October 30, 2017, D.C. law enforcement executed a search warrant with respect to an
apartment leased by Defendant Henry. Based on the ensuing search, codefendants were each
arrested at the apartment, processed in D.C. Superior Court, and released on their personal
recognizance. Defendants Henry and Cortez returned to Defendant Henry’s apartment. On
November 9, 2017, the above-described federal indictment issued, and each of the codefendants
was arrested on November 15, 2017. The codefendants initially appeared before Magistrate Judge
G. Michael Harvey on November 15, 2017, and a detention hearing was scheduled for November
20, 2017.
At the hearing before Magistrate Judge Harvey, Defendant Albrecht did not challenge the
Government’s motion for pretrial detention and was not released. Defendants Henry and Cortez
did challenge the Government’s respective motions, and Magistrate Judge Harvey ordered that
they be released subject to conditions pursuant to 18 U.S.C. § 3142(c). At the Government’s
request, Magistrate Judge Harvey stayed the release orders to permit the Government time to
appeal. Shortly after the detention hearing, the Government filed the presently pending
Government’s [8] Motion for Emergency Stay and for Review and Appeal of Release Order with
1
A separate Memorandum Opinion and Order shall address a parallel motion with respect to
Defendant Angela M. Cortez.
1
respect to Defendant Henry. The Court held a hearing on the record on November 30, 2017, to
obtain further information from the prosecution and defense counsel regarding Defendants Henry
and Cortez, respectively, and the Court made certain findings; all of which are incorporated as part
of this Memorandum Opinion.
The Court has reviewed Defendant Henry’s Pretrial Services Report for United States
District Court, the Government’s [5] Memorandum in Support of Detention, the Government’s [8]
Motion for Emergency Stay and for Review and Appeal of Release Order, and Defendant Henry’s
[13] Opposition to Motion for Emergency Stay and for Review and Appeal of Release Order;
discussed this matter with Magistrate Judge Harvey; and considered the information obtained
through the Court’s November 30, 2017, hearing. For the reasons set forth on the record at the
November 30, 2017, hearing and set forth below, the Court affirms Magistrate Judge Harvey’s
order releasing Defendant Henry subject to the conditions he identified.
I. BACKGROUND
At the initial appearance before Magistrate Judge Harvey on November 15, 2017, the
Government made an oral motion for temporary detention (a three-day hold) of Defendant Henry.
Magistrate Judge Harvey granted this motion, and the detention hearing was set for November 20,
2017.
The Government proffered evidence to Magistrate Judge Harvey, and again offered this
evidence in their pleading on appeal, that Defendant Henry maintained a social media profile
advertising the sale of marijuana and THC-infused products, that an undercover officer of local
law enforcement had arranged to purchase certain such products from Defendant Henry, and that
a search of Defendant Henry’s apartment at 901 6th Street SW, #509A, Washington, DC, 20024
had yielded a large quantity of marijuana and THC-infused products, a smaller quantity of cocaine,
and various implements for manufacturing and consuming marijuana and THC-infused products.
Magistrate Judge Harvey considered whether Defendant Henry could be released subject
to conditions pursuant to 18 U.S.C. § 3142. The Pretrial Services Agency (“PSA”) had
recommended on November 15, 2017, that, if Defendant Henry were to be released, she be released
on personal recognizance with required program placement, if applicable, and a weekly reporting
by telephone.
Magistrate Judge Harvey, on setting the conditions for release, had determined that, under
18 U.S.C. § 3142, Defendant Henry could be released subject to the following conditions: that she
be released into a work release/halfway house; that she have no social passes, including that she
not possess a passport; that she stay away from the apartment she leased; that she report to PSA
weekly by telephone; that she be placed in a weekly drug testing program; and that she seek and
maintain employment. Furthermore, Magistrate Judge Harvey’s order made clear that, inter alia,
“any violation of a condition of release may result in revocation of release, pretrial detention or
contempt” and that if Defendant Henry does not “appear as required, [she] will be subject to
prosecution and if convicted, the maximum penalties” may be imposed. ECF No. 11.
2
II. THE BALANCE OF FACTORS MILITATES IN FAVOR OF RELEASING
DEFENDANT HENRY SUBJECT TO CONDITIONS
The Court reviews de novo whether there are conditions of release that will reasonably
assure the safety of any other person and the community. An offense for which a maximum term
of imprisonment of ten years or more is prescribed in the Controlled Substances Act raises a
rebuttable presumption that no conditions or combination of conditions will reasonably assure the
appearance of the person as required and the safety of the community. See 18 U.S.C.
§ 3142(e)(3)(A).
The rebuttable presumption clearly applies in this case. Because of the cocaine that was
seized from Defendant Henry’s apartment, she has been indicted for unlawful possession with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), among other
charges. The prosecution and defense agree that the statutory maximum term of imprisonment,
thought to be twenty years under 21 U.S.C. § 841(c), is attributable to this cocaine charge rather
than to the marijuana-related charges.
In conducting its analysis of the rebuttable presumption, the Court examines the available
information that touches upon: (1) the nature and circumstances of the offense charged, including
whether the offense involves a controlled substance; (2) the weight of the evidence against the
person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the
danger to any person or the community. See 18 U.S.C. § 3142(g). Between a concern for the safety
of the community and the risk of Defendant Henry’s flight, at the hearing the prosecutor indicated
that the Government’s concern is for the safety of the community.
Upon consideration of these factors, the Court determines that Defendant Henry has
provided evidence to rebut the presumption of detention, which requires “clear and convincing
evidence” under 18 U.S.C. § 3142(f). Accordingly, the Court orders that Defendant Henry be
released pending trial subject to the conditions set forth by Magistrate Judge Harvey, as discussed
above.
1. Nature and Circumstances of the Offenses Charged
Based on the allegations contained in the Government’s [5] Memorandum in Support of
Detention, the charges underlying this case originated with the Metropolitan Police Department’s
(“MPD”) receipt of an anonymous tip flagging suspicious activity and possible drug sales at what
has since been identified as Defendant Henry’s address. The tip indicated that Defendants Henry
and Albrecht lived at the apartment and provided certain other identifying information. The
government also received complaints that the apartment emitted a smell of marijuana that was
“continuous and pervasive immediately upon reaching the fifth floor of the building,” and that
“hundreds” of suspected drug transactions were taking place there. As part of its investigation,
law enforcement identified a social media account belonging to Defendant Henry through which
she advertised sales of marijuana and THC-infused products. An undercover MPD officer made
arrangements with Defendant Henry to purchase certain of these products, and Defendant Cortez
showed up to hand the officer a gift bag containing the products. The transaction is recorded on
video.
3
Upon obtaining and executing a search warrant, MPD officers searched and recovered from
the apartment a substantial amount of marijuana. At the Court’s hearing, the Government made a
proffer that the Drug Enforcement Administration was processing material seized from the
apartment that would amount to over 1,000 exhibits. A sample of photographs of such exhibits
showed copies of online and other text-based communications regarding the sale of marijuana, as
well as photographs of what appear to be marijuana plants and related paraphernalia in the
apartment.
In its [5] Memorandum in Support of Detention, the Government provided the following
list of “some of the items recovered during the course of the search”:
• Approximately 1 kilogram of plant-like substance, which field-tested positive for the
presence of THC.
• Several packages of amber wax-like and crystallized items that field-tested positive for the
presence of THC.
• Assorted items and edibles that contained THC packaged in various containers including
labeled glass jars, heat-sealed plastic envelopes, and plastic cylinders.
• Several items containing a white powdered substance that field-tested positive for cocaine
with a combined weight of 71.5 grams.
• Several caches containing U.S. currency located around the residence totaling
approximately $75,683.12.
• Numerous unidentified pills.
• Numerous digital scales, grinders, hand-rolled cigar machines, RX label stickers, medicine
bottles, and ledgers.
• Numerous hand-rolled cigars, syringes, vape pens and glass marijuana smoking
instruments.
The Government also indicated that “[a]dditional edibles items recovered include cookies, tubes,
mushrooms and gummy candies, all of which are suspected to contain THC.”
As for the 71.5 grams of cocaine that was found, discussion at the hearing and a copy of
an exhibit shared with the Court showed that the cocaine was recovered from a “fake book.” This
fake book was located in a brown dresser in the apartment’s living room. Inside of this fake book
was an indentation cut-out in which the cocaine was found in one or more plastic bags.
Based on Defendant Henry’s alleged online activities, her alleged transaction with the
undercover officer, and the substantial amount of drugs allegedly recovered from an apartment
leased to her, the Court finds that the nature and circumstances of the charged offenses weigh in
favor of detaining Defendant Henry.
4
2. Weight of the Evidence Against the Defendant
The strength of the evidence against Defendant Henry with respect to marijuana is strong.
The Government has copies of alleged correspondence by Defendant Henry regarding the drug
transaction with the undercover officer, and a search warrant executed on her apartment resulted
in recovery of the marijuana products and paraphernalia described above. It should be noted,
however, that at this point in their investigation, the Government has no evidence that Defendant
Henry was buying marijuana from outside sources, rather than growing it in the apartment; that,
with further investigation, may change.
The evidence linking Defendant Henry to cocaine is considerably weaker. The cocaine
was recovered from the living room of an apartment occupied by three people. Although
Defendant Henry was the lease holder, the Government does not argue that the cocaine is
attributable specifically to her, rather than to either of the other two occupants (e.g., Defendant
Cortez, who tested positive at one point for cocaine usage). Moreover, Defendant Henry’s online
sales material made no mention of cocaine; they related solely to marijuana.
Although less cocaine than marijuana was involved, the maximum statutory penalty of
twenty years is much more severe than for marijuana. Defense counsel estimates that the advisory
Sentencing Guidelines provide for an applicable range of only 15-21 months in prison. ECF No.
13, at 3-4. The Government indicated at the Court’s hearing that it has not yet performed its own
calculation. Moreover, the actual calculation may be different depending on which offense
characteristics apply. Nevertheless, it appears that the seriousness of the penalty facing Defendant
Henry is less significant in practice than the maximum penalty would suggest.
Accordingly, the Court finds strong evidence against Defendant Henry, but some aspects,
as described above, particularly regarding the cocaine but also the marijuana, reduce the weight of
this evidence.
3. History and Characteristics of the Defendant
Defendant Henry’s history and characteristics are much more positive. Defendant Henry
grew up in the D.C. metro area and lived only for fifteen months in the apartment at issue, where
she was a leaseholder (until expiration of the lease on November 30, 2017). She is 30 years old
with no prior convictions. Defendant Henry holds two bachelor’s degrees from Virginia Tech.
According to defense counsel at the Court’s hearing, these degrees are in “business management
[and] fashion design,” with a minor in green engineering. She has been employed in the past, for
herself and for other organizations, as a web designer. She was released by D.C. Superior Court
on personal recognizance from October 31, 2017, to November 15, 2017, and she incurred no
additional violations, nor did she abscond. While her Pretrial Services Report indicates that she
“tested positive for Amphetamine in the past 30 days,” defense counsel explained at the Court’s
hearing that this is attributable to medication that she takes by prescription. Accordingly, this
factor weighs heavily against pretrial detention.
5
4. The Nature and Seriousness of the Danger to Any Person or the Community that
Would Be Posed by the Person’s Release
As indicated above, the Government is concerned that Defendant Henry’s release would
endanger the safety of the community. The conditions placed by Magistrate Judge Harvey on
Defendant Henry’s release would ensure the protection of the community’s safety. The halfway
house is a controlled setting which would keep close supervision over Defendant Henry’s
activities. Similarly, the magistrate’s conditions require drug testing and an employment search.
Only for that employment search and the resulting employment would Defendant Henry be
released from the halfway house; social passes would be prohibited. These conditions of
confinement would limit Defendant Henry’s ability to start this alleged illegal activity again and
accordingly “reasonably assure . . . the safety of any other person and the community.” 18 U.S.C.
§ 3142(c)(1)(B). This factor too weighs heavily against pretrial detention.
III. ADDITIONAL CONSIDERATION
PSA has advised the Court that Defendant Henry’s transfer from prison to a halfway house
may be delayed by approximately one week. The Court understands that the delay may be
necessary for a space to become available in the halfway house.
IV. CONCLUSION
Upon consideration of all of the evidence and the factors set forth in 18 U.S.C. § 3142(g),
and the release conditions set by Magistrate Judge Harvey pursuant to § 3142(c), the Court finds
that there is not clear and convincing evidence that no condition or combination of conditions will
reasonably assure the safety of any other person and the community. Rather, the Court finds that
the combination of conditions imposed by Magistrate Judge Harvey would reasonably ensure the
safety of the community were Defendant Henry to be released pending trial. Defendant Henry has
successfully provided evidence sufficient to rebut the presumption in favor of pretrial detention
required by § 3142(e)(3)(A).
Thus, for the foregoing reasons, it is this 1st day of December, 2017, hereby
ORDERED that the Government’s [8] Motion for Emergency Stay and for Review and
Appeal of Release Order is DENIED; and it is
FURTHER ORDERED that Defendant Henry be released pursuant to 18 U.S.C.
§ 3142(c) into a work release/halfway house under the conditions established in the Court’s [19]
Release Order.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
6