United States v. Cortez

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 [9] Motion for Review and
Appeal of Release Order with respect to Defendant Angela M. Cortez (“Cortez”) and Defendant
Cortez’s [14] Motion in Support of Request for Release Pending Trial. 1 A federal indictment
charges (1) Defendants Tiffany Henry (“Henry”), 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. 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 [9]
Motion for Review and Appeal of Release Order with respect to Defendant Cortez, and the defense
1
A separate Memorandum Opinion and Order shall address a parallel Government motion with
respect to Defendant Tiffany Henry.
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followed with the [14] Motion in Support of Request for Release Pending Trial. 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 Cortez’s Pretrial Services Report for United States
District Court, the Government’s [6] Memorandum in Support of Detention, the Government’s [9]
Motion for Review and Appeal of Release Order, and Defendant Cortez’s [14] Motion in Support
of Request for Release Pending Trial; 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 Cortez 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 Cortez.
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 Cortez had participated in a drug transaction
arranged by an undercover officer of local law enforcement. The officer communicated directly
with Defendant Henry to place the order, and Defendant Cortez arrived at the appointed location
bringing the marijuana and THC-infused products that the undercover officer had ordered. This
transaction was videotaped. Defendant Cortez was observed departing from and returning to 901
6th Street SW, #509A, Washington, DC 20024, where she was later found upon a search of the
premises. The search 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 Cortez 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 Cortez were to be released, she be
released on personal recognizance with required program placement and a weekly reporting in
person.
Magistrate Judge Harvey, on setting the conditions for release, had determined that, under
18 U.S.C. § 3142, Defendant Cortez could be released subject to the following conditions: that she
be released on a personal recognizance into the third-party custody of Jesse Salame, a City of San
Antonio, Texas, police officer and Defendant Cortez’s (ex-)brother-in-law, 2 at whose home she is
2
Only at this Court’s hearing did it come to light that the brother-in-law is formerly so. The
Court finds that the difference does not affect its decision in light of other considerations
discussed below, including the statements of Defendant Cortez’s mother.
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to live; that she report weekly in person in San Antonio, and comply with courtesy supervision
there in their heightened supervision program, including electronic monitoring; that she not apply
for, nor possess, a passport, and if she finds her passport, that she surrender it to the PSA; that she
comply with weekly drug testing, and treatment, if necessary; and that she be subject to possible
revocation of her bond as a result of any rearrest on probable cause for any subsequent offense.
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 Cortez does not “appear as required, [she] will be subject to prosecution and if
convicted, the maximum penalties” may be imposed. ECF No. 10.
II. THE BALANCE OF FACTORS MILITATES IN FAVOR OF RELEASING
DEFENDANT CORTEZ 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 the apartment where Defendant Cortez was living, 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 counsel to Defendant Henry agree, and
counsel to Defendant Cortez did not suggest otherwise at the Court’s hearing, 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 Cortez’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 Cortez 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 Cortez 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 [6] Memorandum in Support of
Detention, the charges underlying this case originated with the Metropolitan Police Department’s
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(“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.
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 [6] 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.”
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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 allegedly 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 allegations of Defendant Cortez’s involvement in the transaction with the
undercover officer, and of a substantial amount of drugs recovered from an apartment where she
was living, the Court finds that the nature and circumstances of the charged offenses weigh in
favor of detaining Defendant Cortez.
2. Weight of the Evidence Against the Defendant
The strength of the evidence against Defendant Cortez with respect to marijuana is notable,
although less than against Defendant Henry. The Government allegedly has video evidence of the
transaction taking place between Defendant Cortez and the undercover officer in which Defendant
Cortez provided marijuana and THC-infused products. Although Defendant Cortez also allegedly
was observed departing from, and returning to, the apartment which a search under warrant later
showed to contain the marijuana products and paraphernalia described above, this apartment was
leased to Defendant Henry, who was allegedly conducting the online activities at issue. Moreover,
Defendant Cortez resided for only three weeks in the District. On this record, her only involvement
in the activities at issue appears limited to delivering the drugs to the undercover officer.
The evidence linking Defendant Cortez to cocaine is also questionable. The cocaine was
allegedly recovered from the living room of an apartment occupied by three people. Although,
according to the Pretrial Services Report, Defendant Cortez did “test[] positive for Cocaine in the
past 30 days,” the Government does not argue that the cocaine recovered from the apartment is
attributable specifically to Defendant Cortez, rather than to either of the other two occupants (e.g.,
Defendant Henry, who was the lease holder).
Although less cocaine than marijuana was involved, the maximum statutory penalty of
twenty years is much more severe than for marijuana. Counsel to Defendant Henry estimates, and
Defendant Cortez’s counsel did not suggest otherwise at the Court’s hearing, 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 that it has not yet performed its own calculation. Moreover,
the actual calculation may be different depending on which offense characteristics apply, in
particular because Defendant Cortez’s involvement in the alleged activities was almost certainly
less extensive than Defendant Henry’s. In short, it appears that the seriousness of the penalty
facing Defendant Cortez is less significant in practice than the maximum penalty would suggest.
As mentioned, Defendant Cortez’s involvement is less significant compared with
Defendant Henry, if not also Defendant Albrecht (about whom the Court has less information).
Defendant Cortez’s involvement in the sales operation appears on this record to be limited to
delivering the drugs to the undercover officer. The extent of her responsibility for the marijuana
and THC-infused products recovered from Defendant Henry’s apartment is unclear, but given that
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she resided in the District for only three weeks prior to her initial arrest, it is unlikely that this
responsibility is substantial.
Accordingly, the Court finds strong evidence against Defendant Cortez with respect to
some charges, but some aspects, particularly regarding the cocaine but also the marijuana, reduce
the weight of this evidence.
3. History and Characteristics of the Defendant
Defendant Cortez’s history and characteristics are much more positive. Defendant Cortez
grew up in San Antonio, Texas, where she lived until only three weeks prior to her initial arrest.
There is no indication that she was involved in any sort of drug activity in San Antonio. She came
to the District of Columbia with Defendant Albrecht, who has not challenged his pretrial detention.
She is 33 years old with “no contacts with the criminal justice system (other than traffic matters)”
before her initial arrest in this matter. ECF No. 14, at 2. Defendant Cortez has completed a high
school education, received some college education, and until departing San Antonio, held a job as
a valet for a company that provides valet services to several different restaurants. At the Court’s
hearing, Defendant Cortez’s counsel indicated that that job remains available upon her return. 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 Cocaine in the past 30 days,” that
report also indicates that her subsequent drug test on November 8, 2017, was negative, a point
corroborated at the Court’s hearing by Defendant Cortez’s counsel. Accordingly, this factor
weighs heavily against pretrial detention.
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 Cortez’s release would
endanger the safety of the community. The conditions placed by Magistrate Judge Harvey on
Defendant Cortez’s release would ensure the protection of the community’s safety. Magistrate
Judge Harvey spoke with Jesse Salame, Defendant Cortez’s ex-brother-in-law, and was satisfied
after some independent verification that as a City of San Antonio police officer Mr. Salame will
keep close supervision over Defendant Henry’s activities.
During the Court’s hearing, the Court spoke on the record with Elena Cortez-Castillo,
Defendant Cortez’s mother, who confirmed that she has no concerns about Defendant Cortez
living with the ex-brother-in-law. She represented that Mr. Salame is “still part of the family.”
Ms. Cortez-Castillo will be available to assist as needed, as she lives and works from home only
about one mile from Defendant Cortez’s employment in San Antonio. Ms. Cortez-Castillo owns
Castillo Training, under which auspices she provides “training to state air-conditioning
contractors, teaching them the law and codes and everything they need to know to properly install
systems.” The Court is satisfied that, between Mr. Salame and Ms. Cortez-Castillo, Defendant
Cortez would be well-supervised by responsible family (or nearly family) members.
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Moreover, the magistrate’s conditions require participation in the heightened supervision
program, including electronic monitoring and drug testing. Defendant Cortez has been made
aware that she will be subject to penalties if she does not abide by these or the other conditions set
forth in Magistrate Judge Harvey’s original order, including returning for hearings as necessary.
Her mother and brother-in-law have taken responsibility, with the necessary financial support, for
ensuring that Defendant Cortez can travel to and from her hearings in this Court.
These conditions of release limit Defendant Cortez’s ability to get involved in the 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 CONSIDERATIONS
Since the Court’s hearing, the Court has confirmed that Defendant Cortez will be
monitored by the U.S. Pretrial Services Office of the Western District of Texas as part of its
heightened services.
Defendant Cortez’s counsel represented that upon Defendant Cortez’s release from
confinement, Ms. Cortez-Castillo will take custody of the defendant only for purposes of driving
her from the District of Columbia to San Antonio, where she will transfer custody of the defendant
to Mr. Salame.
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 Cortez to be released pending trial. Defendant Cortez
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 [9] Motion for Review and Appeal of Release Order is
DENIED; and it is
FURTHER ORDERED that Defendant Cortez’s [14] Motion in Support of Request for
Release Pending Trial is GRANTED pursuant to 18 U.S.C. § 3142(c); and it is
FURTHER ORDERED that Defendant Cortez be released into the third-party custody of
Jesse Salame under the conditions established in the Court’s [20] Release Order.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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