United States v. Brown

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

Criminal Action No. 23-73-10 (CKK)

MARCUS ORLANDO BROWN,

Defendant.

MEMORANDUM OPINION

(October 25, 2023)

Defendant Marcus Orlando Brown (“Defendant”) charged by indictment with conspiring

to traffic, with others, thousands of counterfeit pills of fentanyl. Defendant has appealed

Magistrate Judge Robin Meriweather’s oral order detaining him pending trial. Because no

conditions of release can assure the safety of the community or Defendant’s participation in this

matter, the Court DENIES Defendant’s [107] Appeal of Order of Detention.

I. BACKGROUND

The documentary evidence provided by the Government thus far demonstrates a long-term

relationship between Defendant, apparently a drug dealer here in the District of Columbia, and co-

Defendant Hector Valdez (“Valdez”) a fentanyl distributor in Los Angeles, California. In June

2022, Defendant attempted to negotiate with Valdez via text wholesale prices for substantial

amounts of fake prescription pain pills. ECF No. 111 at 6. Additional text messages between

Defendant and Valdez demonstrate the wholesale relationship between the two. First instance, on

January 13, 2023, Valdez agreed to sell Defendant 2,000 pills of fentanyl at 43 cents per pill. Id.

at 4. When Valdez provided miscolored pills that Defendant’s customers would have understood

were fake, Defendant insisted upon a refund. Id. at 5.

As the Court explained in its opinion and order mandating Defendant Max Carias Torres’

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pretrial detention, the Government’s material thus far demonstrates that Valdez distributed a large

amount of fentanyl. United States v. Nava, Crim. A. Nos. 23-73-4, 23-73-6 (CKK), 2023 WL

315897, at *2 (D.D.C. Apr. 28, 2023). A search of his residence in Los Angeles, for example,

uncovered approximately 4.5 kilograms of pills partially laced with fentanyl and 0.5 kilograms of

powdered fentanyl. Id. According to the Drug Enforcement Agency, approximately two

milligrams of fentanyl can constitute a lethal dose. DEA, “Facts About Fentanyl” available at

https://www.dea.gov/resources/facts-about-fentanyl (last accessed October 25, 23 11:01 AM ET).

Therefore, the Government alleges that the search uncovered approximately 250,000 lethal doses

of fentanyl as to the powdered fentanyl alone.

II. DISCUSSION

The Court reviews de novo Judge Meriweather’s detention order and is “free to use in its

analysis any evidence or reasons relied on by [Judge Meriweather], but it may also hear additional

evidence and rely on its own reasons.” Sheffield, 799 F. Supp. 2d at 20 (quoting United States v.

Hanson, 613 F. Supp. 2d 85, 88 (D.D.C. 2009)). The question for the Court is whether any

“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). “In

common parlance, the relevant inquiry is whether the defendant is a ‘flight risk’ or a ‘danger to

the community.’” United States v. Vasquez-Benitez, 919 F.3d 546, 550 (D.C. Cir. 2019).

Although the Bail Reform Act permits pretrial detention in only “carefully defined

circumstances[,]” United States v. Simpkins, 826 F.2d 94, 95–96 (D.C. Cir. 1987), a rebuttable

presumption of detention applies in cases such as this charging serious violations of the Controlled

Substances Act, see 18 U.S.C. § 3142(e)(3)(A). Nevertheless, the Bail Reform Act’s familiar four-

factor test governs the inquiry: (1) the nature and circumstances of the offense charged; (2) the

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weight of the evidence against the defendant; (3) the history and characteristics of the defendant;

and (4) the nature and seriousness of the danger to any person or the community that would be

posed by the defendant’s release. 18 U.S.C. § 3142(g).

“To justify detention on the basis of dangerousness, the government must prove by ‘clear

and convincing evidence’ that ‘no condition or combination of conditions will reasonably assure

the safety of any other person and the community.’” United States v. Munchel, 991 F.3d 1273,

1279–80 (D.C. Cir. 2021) (quoting 18 U.S.C. § 3142(f)). That standard requires the Government

to establish that the defendant “poses a concrete, prospective threat to public safety” that cannot

be sufficiently mitigated by release conditions. To rebut the presumption of detention here,

Defendant must “offer some credible evidence” that they will not endanger the community or flee

if released. United States v. Cherry, 221 F. Supp. 3d 26, 32 (D.D.C. 2016).

A. Nature and Circumstances of the Offense Charged

To reiterate, in this case, a rebuttable presumption of detention applies, because Defendants

have been charged by indictment with serious violations of the Controlled Substances Act. See 18

U.S.C. § 3142(e)(3)(A); United States v. Brown, 538 F. Supp. 3d 154, 165 (D.D.C. 2021). Even

the possession with intent to distribute “9.11 grams of fentanyl and .89 grams of powdered

cocaine” triggers such a presumption. Brown, 538 F. Supp. 3d at 165-66. Here, the Government

has presented convincing evidence that Defendant conspired to traffic and did in fact traffic in

hundreds of grams of fentanyl, and joined a conspiracy that trafficked hundreds of thousands of

grams of fentanyl. See Nava, 2023 WL 315897 at *4.

“Moreover, this is not the case of an individual seller working alone.” Brown, 538 F. Supp.

3d at 167. The Government alleges not just a conspiracy among the Defendants in this action, but

distribution from one coast of the United States to the other. Therefore, Defendant’s “alleged

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participation in the conspiracy charged thus strongly suggests that, if released, he would have the

means to purchase and distribute narcotics and thereby endanger the D.C. community.” See id.

Therefore, this first factor weighs in favor of detention

B. Weight of the Evidence

The weight of the evidence against Defendant also favors continued pretrial detention.

Law enforcement recovered messages and images from Defendant reflecting that Defendant dealt

in large amounts quantities of counterfeit opioids. The weight of this evidence is strong. See

Brown, 538 F. Supp. 3d at 168-69. More broadly, because Defendant documented himself

trafficking in large amounts of illicit drugs, this factor weighs in favor of detention. See United

States v. Brockhoff, 590 F. Supp. 3d 295, 304 (D.D.C. 2022).

C. History and Characteristics of the Defendant

Under the third section 3142(g) factor, the Court must consider a defendant’s “history and

characteristics,” including his “character, physical and mental condition, family ties, employment,

financial resources, length of residence in the community, community ties, past conduct, history

related to drug or alcohol abuse, criminal history, and record concerning appearance at court

proceedings.” 18 U.S.C. § 3142(g)(3).

To be sure, Defendant’s lack of a serious criminal record weighs against pretrial detention.

See Brockhoff, 590 F. Supp. 3d at 305. Nevertheless, the Pretrial Services Agency for the District

of Columbia represents that there is no custodian that could adequately supervise Defendant while

on release. ECF No. 120 at 1. Even were Defendant to have sufficiently strong family and

community ties, those facts would not satisfy his burden to demonstrate lack of danger or risk of

flight if released. Therefore, this factor also weighs in favor of detention.

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D. The Nature and Seriousness of the Danger Posed by Defendant’s Release

The final factor that the Court must consider is “the nature and seriousness of the danger

to any person or the community that would be posed by the person’s release.” 18 U.S.C. §

3142(g)(4). Conspiring to distribute fentanyl presumptively renders a defendant a serious danger

to the community. See Brown, 538 F. Supp. 3d at 170; cf. also United States v. Bethea, 763 F.

Supp. 2d 50, 54 (D.D.C. 2011) (narcotics trafficking generally). Particularly so here given the vast

amounts of drugs at issue. Moreover, Defendant faces a mandatory minimum sentence of ten

years, see 21 U.S.C. § 481(b)(1)(A)(vi), posing a serious risk of flight. And the Government

alleges that Defendant joined a conspiracy with other Defendants who have substantial ties to

Mexico. See Nava, 2023 WL 315897 at *4. More generally, “the lethality of fentanyl and scourge

of . . . opioids on this community [and communities around the country] further demonstrate the

serious danger Defendant’s release could pose.” United States v. Bolivar, 455 F. Supp. 3d 1165,

1171 (D.N.M. 2020). Therefore, this factor also weighs in favor of detention.

III. CONCLUSION

On the whole, the record establishes, by clear and convincing evidence, that no condition

or combination of conditions can be imposed that would reasonably assure the safety of the

community if Defendant were released pending trial. 18 U.S.C. § 3142(e)(1). As such, the Court

DENIES Defendant’s [107] Appeal of Order of Detention. An appropriate order accompanies

this memorandum opinion.

Dated: October 25, 2023

/s/

COLLEEN KOLLAR-KOTELLY

United States District Judge

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