1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) ) Criminal Action N o. 16-cr-224 (RMC) GADDY LITTLE (1), ) ) Defendant. )

_________________________________ )
MEMORANDUM OPINION ON DETENTION Defendant Gaddy Little faces drug and gun charges in this Court

. See Indictment [Dkt. 1]. He was arreste d on Wednesday, January 11, 2017, and appeared for his initial hearing before Magistrate Judge Debor ah Robinson on Thursday, January 1 2, 2017. At that time, the government orally moved to have Mr. Little he ld without bond, w hich motion the Judge temporarily granted, pending a de tention hearing to be held on Friday, January 13, 2017. At the conclusion of the detention hear ing, Magistrate Judge Robinson ordered Mr. Little released on the condition of home confinemen t with limited exceptions and w ithout location monitoring. The Government filed a motion for an emergency stay and for rev iew and appeal of the release order, Mot. for Emergency S tay [Dkt. 6], on Friday afternoon, w hich this Court granted. See 1/13/17 Minute Order. A heari ng on bond review was held at the soonest possible date (Wednesday, January 18, 2017), at which time this Court ordered Mr. Little’s detention pending trial pursuant to 18 U.S.C . § 3142. Section 3142(e) allows a c ourt to hold a defendant pending trial, but a judicial officer e ntering a detention order must “ include written findings of fact and a written statement of the reasons for the detention.” 18 U.S.C. § 3142(i)(1). This memorandum opinion makes those findings and e xplains the reasons for Mr. L ittle’s detention.2 I. BACKGROUND During the hearing on January 18, 20 17, the Government presente d an oral proffer that summarized and expanded on its arguments to detain Mr. Lit tle, as previously presented in its written Motion for Emergen cy Stay. With the exception of t he quantity of PCP charged, these facts were not serious ly disputed by Mr. Little:
1. Mr. Little was indicted on December 8, 2016, with one count of Possession with the Intent to Distribute Phencyc lidine (PCP) in violation of 21 U.S .C. §§ 844(a)(1) and 841(b)(1)(B)(iv); one count of Po ssession with the Intent to Di stribute Cocaine Base, also known as “crack,” in violation of 21 U.S.C. §§ 844(a)(1) and 84 1(b)(1)(C); one count of Unlawful Possession of a Firear m and Ammunition, in violation o f 18 U.S.C. § 922(g)(1); and one count of Po ssessing a Firearm During or in Furtherance of a Drug Trafficking Offense, in viol ation of 18 U.S.C. § 924(c). 2. As indicated above, Mr. Little was not arrested for the indicte d crimes until January 11, 2017. 3. Three months earlier, on Oct ober 11, 2016, at approximately 1:1 7 p.m., Mr. Little was driving on Suitland Parkway in Mar yland with his co-defendant T iffany Mack and their two children, a 7-month-old and a three-year-ol d. Mr. Little d rove the car over the concrete median into oncoming tra ffic and struck a pickup truck head on. The truck flipped multiple times. Emergency personnel transported the tr uck driver, Mr. Little, and the two children to the hospital . The driver of the truck late r died. Mr. Little suffered a broken leg, broken pelvis, and broken ribs. 4. United States Park Police officer s investigating the crash scen e recovered a plastic bag containing a Newport cigarette pack on the ground directly outs ide and below Mr. Little’s seat as driver of the car. The o fficers report that it contain ed a one-ounce vial that was 1/3 full of PCP and two plasti c bags that contained 10.5 grams of crack. In addition, the vehicle contained numerous packs of Newport cigarettes and some purple latex gloves. 5. Eight days later, on October 19, 2016, the Park Police officers executed a search warrant at the residence where Mr. Little and Ms. Mack live. Mr. Littl e was out of the hospital and present, but recumbent on a m attress on the floor in front of the living room couch; his injuries prevented him fr om rising. During the search, the officers looked under the cushions of the couch and, from under the cushion nearest Mr. L ittle’s head, retrieved a Taurus .45 caliber pistol, load ed with nine rounds and wrapped in a purple latex glove. Mr. Little spontaneously said, “ if it’s a .45, it’s mine.” Al so located on the sofa was a plastic bag containing $504 in cash. 6. From various locations in the kitchen, the officers seized:3 a. Twenty-one (21) vials appeari ng to contain some amount of PCP, several empty glass vials, and numerous pi nk empty zip lock baggies; b. Crack in the amount of 6.4 grams, a 3-ounce vial that appeared to be PCP, more than 20 empty glass vials, a nd boxes of purple latex gloves;

c. An extended magazine for a G lock .40 caliber pistol, 140 rounds of .40 caliber ammunition, a box of .45 caliber ammunition, .38 caliber ammuni tion, and mail matter in Mr. Little’s name; d. Eighteen (18) empty glass vial s, numerous unused pink zip lock bags, an eye dropper, latex gloves, and razor blades; and

e. A Taurus .45 caliber magazine l oaded with 10 rounds of ammuniti on. 7. Mr. Little waived his Miranda 1 rights and told the officer s that he had purchased the Taurus .45 caliber gun approximatel y two-and-one-half weeks ear lier for protection. He also stated that the vials in t he kitchen were his but did not contain much PCP. 8. Mr. Little has eight prior convict ions, four of which are narco tics offenses and one of which is a firearms offense. (He is also charged in U.S. Distr ict Court in Maryland for alleged crimes arising out of the search of his vehicle after t he car crash.) Most recently, he was convicted on April 8, 2016 in case 2014-CF2-18508 for Po ssession of Liquid PCP, and was on probation at the tim e of the instant alleged of fenses. Previously, he was convicted of Possession of Li quid PCP and Possession of Marijua na in case 2010-CF2- 23032; these offenses were committed while he was on release fo r another matter. Mr. Little was also convicted of Atte mpted Possession with Intent t o Distribute PCP in case 2010-CF2-14208. In 1997, he was convicte d for carrying a firea rm in case CA-970754J in Prince George’s County. 9. Following the search, the Park Pol ice completed a search return form, indicating what was found at the residence. The items identified in the search return were entered on a Park Police computer, which o ffered a drop-down box of items am ong which to select. That search return identifies all the PCP-related materials (vi als, liquids, etc.) as “drug paraphernalia.” Since the deten tion hearing before Judge Robin son, the officers conducting the search and enter ing the information have separat ely informed the Assistant United States Attorne y, and she proffered, that this was an entry error and that the officers—members of the Un ited States Park Police—identifie d the liquid substances as PCP, not paraphernalia, from its familiar odor. Park Police do not carry kits in their vehicles to field test for PCP. In addition to its proffered facts , as identified above, the Go vernment argued that Mr. Little is a repeat drug offe nder, poses a significant risk of pre-trial recidivism, and stored his

1 Miranda v. Arizona , 384 U.S. 436 (1966).4 gun, ammunition, and PCP in places with in the residence which w ere readily accessible to his three-year-old child. The Govern ment also argued that he remai ns a danger to the community and that his injuries from the crash (which appe ar to limit his mobility to a wheel chair) do not mean that he cannot sell drugs from his residence. Mr. Little argued for release pe nding trial and offered three r easons to support a finding that he was not a danger to the community or a flight r isk. First, Mr. Little argued that the seriousness of the offense was exaggerated because although the indictment charged 100 grams or more of PCP, the offi cers who recovered the items only categorized them as “drug paraphernalia,” not actual drugs , which constitutes a lesser of fense. Second, Mr. Little challenged the Government’s belief that he was a flight risk or a danger by highlighting the amount of time that passed from th e original accident and searc h warrant to the indictment and then from the indictment to his eventual arrest. Mr. Little ar gued that if the Government actually believed he was a danger to the c ommunity or flight risk, they wouldn’t have waited 6 weeks after the indictment to arrest him. Finally, Mr. Little argued that the willingness of the Government to release Ms. Ti ffany Mack, his co-defendant and gi rlfriend, who also lives in the home where the gun and PCP w ere found, should weigh in favor of his release as well. The Court queried the parties a bout the Magistrate Judge’s ruli ng; inasmuch as Judge Robinson did not order Mr. L ittle detained, she had no ne ed to prepare a detention memorandum and the time betw een Friday, January 13, 2017 and We dnesday, January 18, 2017 had not allowed for the preparati on of a transcript (Monday, Ja nuary 16 was a federal holiday in recognition of Marti n Luther King Jr.). The Government explained that the Magistrate Judge had relied o n Mr. Little’s medical condition, as he recovers from his broken bones, and so ordered him to be confined to5 his home. Further, Judge Robi nson doubted the presence and amo unt of PCP charged in the Indictment because there was no field test to confirm that the liquid was PCP and some vials were clear while others were not. Defense counsel quoted the M agistrate Judge as finding “scant evidence” that it was PCP in Mr. Little’s home because a photo of many of the vials showed a clear liquid in most while others had some hue. The Magistrate Judge also credited defense counsel’s arguments that Mr. Lit tle arguably said there was “no PCP” in his kitchen, not that it was his; and that the seizing o fficer reported the vials as PCP paraphernalia and not the drug itself. Further, the Magistrat e Judge may have been persuaded by defense counsel’s arguments (1) that the Government had agreed to the almost-immediate rele ase of co-defendant Ms. Mack; (2) that it was unduly slow to indi ct Mr. Little and slow to ar rest him, so it must not have considered him much of a threat to the community; and (3) that, despite the passage of time, there had been no test of the s eized liquid by the Drug Enforce ment Administration (DEA) to prove that it was PCP. Before this Court, the Governme nt proffered that both the seizi ng and arresting officers had separately explaine d that the choice of “paraphern alia” on their report was entered in error in usage of the comput er program’s drop-down box and that each of them clearly smelled PCP in the vials; that, unlike Mr . Little, co-defendant Mack ha s a prior history of only one Driving Under the Influence (DU I) conviction, which made her el igible for release; and that the timing of the Indictment and arres t are irrelevant to the quest ion of detention. The Government vigorously contested Defendant’s attack on the charged quantity of PCP. Neither lawyer contested the seizure of crack c ocaine or related drug parapher nalia (small zip-lock bags, razor blade, plastic gloves, etc.).6 II. LEGAL STANDARD As stated above, Magistrate Judge Robinson ordered Mr. Little r eleased at the end of his detention hearing. R elying on 18 U.S.C. § 3145(a), the Government appealed to this Court to stay and review that o rder. Section 3145(a) states: Review of a release order.—If a person is ordered released by a magistrate judge, . . . (1) the attorney for the Government may file, with the court having original jurisdiction over the o ffense, a motion for revocation of the order or amendment of the conditions of release . . . . The motion shall be determined promptly. Id. On such a motion, the court considers de novo the question of pre-tria l detention, by taking evidence, recalling witnesses or reviewing transcripts, or proc eeding through proffer and argument at its discretion. See Unites States v. Sheffield , 799 F. Supp. 2d 18, 19-20 (D.D.C. 2011). New arguments may also be raised by the parties. The C ourt uses the tests and standards set forth in the Bail Refo rm Act, 18 U.S.C. § 3142, to determin e whether a defendant should be released or detained pending tri al. The Bail Reform Act begins by presuming that release with some set of conditions will ensure a defendant’s appearance at trial and protect the community. However, in some situations the Court is required to presume th at a defendant should be detained. Section 3142(e)(3) states that Subject to rebuttal by the pers on, it shall be presumed that no condition or combination of condi tions will reasonably assure t he appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed— (A) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq .), the Controlled S ubstances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.7 18 U.S.C. § 3142(e)(3). 2 The Court “may rely on a grand j ury indictment to establish p robable cause for the purposes of triggeri ng the rebuttable presumption of section 3142(e).” United
States v. Williams , 903 F.2d 844, 844 (D.C. Cir. 1990) (per curium) (unpublished) ; see also
United States v. Smith , 79 F.3d 1208, 1210 (D.C. Cir. 1996). Despite the presumption, the Court “must evaluate the weight of the evidence against each defendant seeking reco nsideration of the detention orders and pretrial release to determine whether detention is proper.” United States v. Muschetta , 118 F. Supp. 3d 340, 344 (D.D.C. 2015) (citing 18 U.S.C. § 31 42(g)(2)). The Bail Reform Act instructs the Court to consider the following four factor s when determining if detenti on is appropriate: (1) [t]he nature and circumstances of the offense charged, incl uding whether the offense . . . involve s . . . a controlled substance ; (2) the weight of eviden ce against the person; (3) the history and characteri stics of the person, including . . . the person's character, physical and mental condition, family ties, employment, financial resource s, length of residence in the community, community ties, past conduct, history relating to dr ug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and . . . (4) the nature and seriousness of the danger to any person or t he community that would be pos ed by the person's release. 18 U.S.C. § 3142(g).
III. ANALYSIS The Court ordered that Mr. Lit tle be detaine d pending trial. First, the Court was persuade d by its own knowledge of the attr ibutes of PCP, including its smell, and the use in PCP street sales of one-hal f or ounce vials as were seized,

2 Mr. Little was indicted by a Grand Jury on violations of the C ontrolled Substances Act which carry a maximum term of impris onment of ten years or more.8 many containing some amount of smelly liquid. The Court finds no reason to challenge the proffer that the Park Police determined, based on the look and smell of the liquid in the vials, that they contained some amount of PCP . The Court was also persuade d by the seizure of multiple packs of Newport cigarettes, 3 plastic gloves, other drug para phernalia, and a gun from Mr. Little’s residence. In addition, the money in the residence, M r. Little’s three prior drug convictions involving PCP posse ssion and/or possession with int ent to distribute, and his status on probation and supervision at th e time of this and prior crim es, lend probable cause to the immediate charges and his on-goi ng danger to the community. As a result of these findings, t his Court was not persuaded tha t there was “scant evidence” of the presence of PCP in Mr. Little’s residence as f ound by the Magistrate Judge. Defense counsel’s challenge to t he charged amount of PCP is not convincing for the reasons articulated above. While it is pos sible that tests by the DEA, now ordered, will confirm a lesser
amount of PCP seized from Mr. Little’s residence, 4 counsel’s arguments are insufficient to challenge his detention because of the nature of the drug, its odor, how it is sold, the uncontested

3 In the District of Columbia at least, PCP is most often sold b y “fracking” a filtered cigarette (meaning to rub it between two hands to dislodge tobacco from t he end that is normally lighted, making room for PCP); dipping the cigarette into a small ounce or half-ounce vial of PCP and then inhaling to draw the PCP thr ough the cigarette; and sellin g the “dipper” for a per-cigarette price on the street. Newport ciga rettes, which contain menthol , are favored for this purpose. See United States v. Wilson , 605 F.3d 985, 998 (D.C. Cir. 2010); see also United States v. Castle , 53 F. Supp. 95, 99 (D.D.C. 2014).

4 The lack of DEA confirming tests that the liquid in all of the vials was PCP does not, on this record, undercut the officers’ p roffered statements that they s melled PCP in the liquid, the Grand Jury’s finding of probabl e cause, or this Court’s de novo finding that Mr. Little should be detained pending trial.9 evidence seized, Mr. Little’s st atements, and his client’s (ver y recent) criminal history. 5 The Court found that the Grand Jury’s decision to indict and the pr offered evidence provided probable cause that Mr. Little c ommitted the charged offense an d, therefore, to justify release, Mr. Little must rebut the presumption that no set of conditions could reasonably assure his presence at trial or protect the public. The Court considered the nature and characteristics of the offe nse and found that because the offense involves the possession with intent to dist ribute large quantities of PCP, that factor weighed in favor of de tention. Additionally, after cons idering the proffer of evidence by the government, the Court found the weight of the evidence, tha t Mr. Little admitted that the gun found in the residence was his , and the amount of drugs and dru g paraphernalia found in the residence, also weighed in fa vor of detention. T he history and characteristics of the Defendant also weighed in favor of detent ion. Mr. Little has multiple pr ior convictions for narcotics convictions involving PCP and a pr ior conviction for a firearm offense. Mr. Little also has a history of reoffending while on pro bation or supervised release for other offenses. The Court, therefore, found that the first three fact ors weighed in favor of detention. Defense counsel’s arguments foc used on the final factor, the po tential danger to the community should Mr. Little be released, and the risk of fl ight. Counsel argued that the quick release of co-defendant Ms. Mack, who is charged with the same crimes, demonstrates that the government had no belief that Ms. Mack would flee and no ba sis to believe that Mr. Little, especially in his injured condi tion, would flee. More critical ly, perhaps, defense counsel

5 During the January 18, 2017 hearin g, the Court asked defense c ounsel whether a judicial official is free to reject proba ble cause (or the findings of f act on which it was based) found by a Grand Jury when deciding whether to release or detain a defenda nt. That issue is moot in light of the government’s proffered fact s and legal conclusions made here.10 attacked the government’s de lay, between the October 11, 2016 h ead-on collision in Maryland and the December 7, 2016 return of an indictment in D.C. Indee d, after obtaining t he Indictment on December 7, the government delayed until January 11, 2017 to arrest the Defendant. These delays, according to defense couns el, demonstrate that the gove rnment recognizes that Mr. Little is not a flight risk; that he did not leave his house after the search date of October 18, 2016 (except for court appearances) and is not a danger to the commu nity; and that he can, therefore, be released to home confinement. The Court concluded that Mr. Litt le’s injuries supported a find ing that he was not a risk of flight but does not dimi nish the potential danger to the community through continued dealing of PCP from his home. T he Court did not draw any concl usions from the delay in indicting or arresting Mr. Little . The Government is permitted to make its own determinations on when to indict a defendant and w ithout evidence of abuse or some facts to support that the delay was due to a lack of dange r, the delay does not affect th e detention analysis. Similarly, the Court, without other facts or e vidence, will not conclude that the time between Indictment and arrest demonstrates Mr. Little i s not a danger t o the community

. Mr. Little’s access to PCP and crack is demonstrated by his cri minal history and the drugs seized from his car a nd home. Not only was a Taurus .45 caliber gun found under the couch cushion directly next to M r. Little, but ammunition for t hat gun and numerous other guns was retrieved from his residenc e, indicating possible use of or access to other weapons. The money seized during the search also supports a finding of drug dealing and community danger. See United States v. Cardoza , 713 F.3d 656, 660 (D.C. Cir. 2013) (noting that evidence of l arge amounts of cash, drugs, and previous arrests establishes probab le cause to believe the defendant was dealing drugs). It is not i mprobable that lying on a mattr ess in his living room, gun at the11 ready, Mr. Little could have b een able to continue his drug bus iness. Therefore, the Court found that even home detention—ordered by the Magistrate Judge—would present a serious risk to the safety of the community. After considering the nature and c ircumstances of the offense, the weight of the evidence against Mr. Little, th e history and characteristics of Mr. Little, and the nature and seriousness of the danger to the c ommunity if Mr. Little were r eleased, the Court found that Mr. Little failed to rebut the pre sumption of detention and that Mr . Little’s prior record of continuing crime while on probation or releas e also supported detention.
IV. CONCLUSION For the reasons stated in open Court on January 18, 2017, and i n the above opinion, the Court reversed the M agistrate Judge’s decision to release Mr. Little, found him a danger to the community, and orde red him detained pending trial

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Date: January 30, 2017 /s/ ROSEMARY M. COLLYER United States District Judge