UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. No. 25-cr-0097-JDB NELSON DOMINIQUE BRYANT,
Defendant.
MEMORANDUM OPINION AND ORDER
Historically, when a magistrate judge has ordered a defendant’s release, that same
magistrate judge has automatically stayed their decision. No longer. Instead, the Court will analyze
the four “traditional stay factors” established in Nken v. Holder, 556 U.S. 418 (2009). Here, the
four factors lead the Court to DENYING the Government’s motion to stay.
I. BACKGROUND
A. Staying Release Orders
Because “[i]t takes time to decide a case on appeal” and “no court can make time stand
still[,]” a court may grant a stay of a judicial decision pending such appellate review. Nken, 556
U.S. at 421 (internal quotations omitted) (quoting Scripps–Howard Radio, Inc. v. FCC, 316 U.S.
4, 9 (1942)). “The authority to hold an order in abeyance pending review allows an appellate court
to act responsibly. A reviewing court must bring considered judgment to bear on the matter before
it, but that cannot always be done quickly enough to afford relief to the party aggrieved by the
order under review.” Id. at 427 (emphasis added).
1 “At the same time, a reviewing court may not resolve a conflict between considered review
and effective relief by reflexively holding a final order in abeyance pending review.” Id. “A stay
pending appeal is an extraordinary remedy. It is ‘an intrusion into the ordinary processes of
administration and judicial review and accordingly is not a matter of right.’” M.M.V. v. Barr, 459
F.Supp.3d 1, 4 (D.D.C. 2020) (internal citations omitted) (quoting Nken, 556 U.S. at 427).
This is especially true in the context of government motions to stay release orders given
that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully
limited exception.” United States v. Munchel, 991 F.3d 1273, 1279 (D.C. Cir. 2021) (quoting
United States v. Salerno, 481 U.S. 739, 755 (1987)).
B. Defendant’s Release Order
On June 9, 2024, law enforcement approached a crowd of people in the 1900 block of 9th
Street, N.W., after receiving a tip that a person that matched the Defendant’s description possess
a firearm. As law enforcement approached the Defendant, they saw him hand something to an
unidentified man. The unidentified man then dropped a firearm and fled. The unidentified man
evaded capture. Meanwhile, law enforcement arrested the Defendant.
On June 10, 2024, the government charged the Defendant with one count of carrying a
pistol without a license, in violation of 22 D.C. Code § 4504(a)(1), and one count of possession of
a firearm by a person previously convicted of a crime punishable by a term of imprisonment
exceeding one year, in violation of 22 D.C. Code § 4503(a)(1). See 2024-CF2-005618.
On June 13, 2024, a magistrate judge in D.C. Superior Court denied the government’s
request for pretrial detention. The judge released the defendant on conditions of release to include
GPS monitoring and a stayaway order. On June 14, 2024, the Defendant reported as directed for
installation of the GPS monitor. On July 2 and August 5, 2024, the Pretrial Services Agency
2 submitted reports, notifying the Superior Court judge that the Defendant was in compliance with
his conditions of release.
On September 12, 2024, the defendant was arrested on an unrelated complaint filed in
Superior Court. See 2024 CF1 009151. The magistrate judge detained the Defendant in that case.
On April 1, 2025, the government moved to dismiss this case. The government stated no basis for
doing so, but rather entered a nolle prosequi. At no point did a grand jury make a probable cause
finding in that case, and it is unclear why no preliminary hearing was held.
Following the dismissal, the Superior Court judge scheduled a bond review hearing for in
the original gun case. But before the motion could be heard, a grand jury in this court returned an
indictment charging a violation of 18 U.S.C. § 922(g). The government then moved to dismiss the
Superior Court case.
On April 15, 2025, the Defendant appeared before the undersigned for a detention hearing.
During that hearing, the Government requested pretrial detention. The Court ordered the
Defendant released subject to certain conditions, including: home detention at his third-party
custodian’s residence in Waldorf, Maryland; supervision by his third-party custodian—a
firefighter of several years; remote camera monitoring of the residence when the third-party
custodian or his wife are not at home; limitation of visitors to the residence to immediate family
of the Defendant and the third-party custodian; daily searches by the third-party custodian of the
Defendant; and GPS monitoring of the defendant. See Conditions of Release. The Government
sought to appeal that release decision and moved for a stay of release pending appeal.
The Court refused to automatically stay the release decision. The Court found that the
Government could not meet its burden under Nken. This Order memorializes the reasoning for that
decision.
3 II. LEGAL STANDARD
The “traditional” standard for a stay requires courts to consider four factors: “whether (1)
[the party seeking the stay] is likely to prevail on the merits on appeal; (2) [the party seeking the
stay] will be irreparably harmed in the absence of a stay; (3) other parties will not be substantially
harmed by the entry of a stay; and (4) the public interest favors a stay.” United States v. Khanna,
703 F. Supp. 3d 1309, 1313 (N.D. Okla. 2023) (paraphrasing the “Nken factors”); see also United
States v. Taylor, No. 21-cr-392, 2021 WL 2439231, at *1 n.1 (D.D.C. June 15, 2021).
“[A] stay is an exercise of judicial discretion, and whether to grant it depends upon the
specific circumstances of the case. The moving party bears the burden of justifying why the court
should grant this extraordinary remedy.” M.M.V., 459 F. Supp. 3d at 4 (internal citations omitted).
III. DISCUSSION
What typically happens when the Government appeals a release order is that the magistrate
judge automatically stays their decision for several days, giving the government time to file their
appeal with the assigned district judge. This has allowed the United States to artificially
manufacture an automatic stay when the law naturally created none. But do courts even have the
authority to stay release decisions?
A. The Bail Reform Act Does Not Authorize a Stay Pending Appeal
We first look to the statute for answers: here, the Bail Reform Act. Nothing in the Bail
Reform Act authorizes—let alone requires—a stay. That is not to say that the Bail Reform does
not contemplate appeals at all. It states that motions to review a release order and appeals of such
motions “shall be determined promptly.” 18 U.S.C. § 3145(a), (c). If “Congress intends to make a
procedural mechanism automatic, it does so explicitly. For example, certain statutes have clear
language mandating automatic stays.” United States v. McLean, 749 F. Supp. 3d 167, 171 n.2
4 (D.D.C. 2024) (citing Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin,
599 U.S. 382 (2023) (‘[T]he [Bankruptcy] Code includes a number of requirements, like the
automatic stay provision [at 11 U.S.C. § 362(a)], that generally apply to all creditors.’)
and Nken, 556 U.S. at 418 (discussing the Immigration and Nationality Act’s automatic stay
provision, which was later repealed)).” And the courts are not here to clean up Congress’ drafting
mistakes. See Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148, 164–65
(2008) (declining to expand a cause of action beyond the contours of what Congress expressly
provided because “the jurisdiction of the federal courts is carefully guarded against expansion by
judicial interpretation”). Thus, there is no statutory basis for a stay of a release order. 1
B. Common Law Does Not Authorize an Automatic Stay Pending Appeal
We next look to the case law for answers. In this circuit, judges use the Nken factors to
determine whether a decision should be stayed in a variety of case types: immigration, see, e.g.,
M.M.V., 459 F. Supp. 3d at 1; presidential removal power, see Dellinger v. Bessent, No. 25-cv-
5052, 2025 WL 887518, at *1 (D.C. Cir. Mar. 10, 2025); First Amendment, cf. Grace v. Whitaker,
No. 18-cv-1853, 2019 WL 329572, at *1 (D.D.C. Jan. 25, 2019) (applying Nken factors to
injunctive relief); and more. Courts have also applied the Nken factors in criminal cases, including
when the defendant moves to stay. See, e.g., United States v. Trump, 704 F. Supp. 3d 1 (D.D.C.
2023).
1 At least two federal district courts previously had local rules that required automatic stays of a release decision. See United States v. Craven, No. 08-cr-123, 2008 WL 2945001, at *2 n.2 (N.D. Okla. July 25, 2008) (mentioning Northern District of Oklahoma’s local “automatic stay” rule in passing); see also United States v. Torres, 86 F.3d 1029, 1030 n.1 (11th Cir. 1996) (mentioning Southern District of Florida’s local “automatic stay” rule in passing). However, those district courts have since amended their local rules to eliminate such stays.
5 Yet, there is a dearth of case law from judges applying these factors to resolve the
government’s motion to stay a release order. The little caselaw on this question warrants against
such stays. See Taylor, 2021 WL 2439231, at *1 (Judge Lamberth denied government’s motion to
stay magistrate judge’s release order); Minute Order, United States v. Young, No. 1:19-cr-366
(D.D.C. Jan. 27, 2020) (Judge Chutkan refused automatic stay and denied appeal of magistrate
judge’s release order). Regardless, Nken authorizes judges to stay release orders pending appeal.
But such stays are not automatic. Instead, they require the four-factor analysis. See Nken v. Holder,
556 U.S. 418 (2009).
C. Traditional Four-Factor Test of Motions to Stay
Notably, “[t]he first two factors of the traditional standard are the most critical.” Id. at 434.
Likelihood Government Will Prevail on the Merits
“With respect to the first factor, the Court of Appeals has stated that ‘[i]t is not enough that
the chance of success on the merits [is] better than negligible.’ Instead, it must be ‘substantial[.]’”
M.M.V., 459 F. Supp. 3d at 4 (internal citations omitted) (quoting Nken v. Holder, 556 U.S. 418,
434 (2009) and Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841,
843 (D.C. Cir. 1977)). “The Court has also observed that a movant’s failure to satisfy this stringent
standard for demonstrating a likelihood of success on the merits is ‘an arguably fatal flaw for a
stay application.’” Id. (quoting Citizens for Responsibility & Ethics in Washington v. Fed. Election
Comm’n, 904 F.3d 1014, 1019 (D.C. Cir. 2018) (per curiam)).
Here, the government moves to stay the Court’s release order. So the government must
demonstrate a likelihood that they will prevail on the merits of their argument to detain the
Defendant pretrial. Under the Bail Reform Act, an individual must be released pending trial unless
the court “finds that no condition or combination of conditions will reasonably assure the
6 appearance of the person as required and the safety of any other person and the community.” 18
U.S.C. § 3142(e)(1); see Salerno, 481 U.S. at 755. “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).
To determine whether the Government has met this burden, the Court considers four
factors: “(1) the nature and circumstances of the offense charged, (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 that would be posed by the person's
release.” Munchel, 991 F.3d at 1279 (internal quotation marks omitted) (quoting 18 U.S.C. §
3142(g)(1)–(4)).
Regarding the first factor, the Defendant is charged with a single count of felon in
possession. See Indictment. It appears that the Defendant was allegedly in constructive possession
of a firearm. Regardless, courts have repeatedly held that the actual possession of a firearm is not
a crime of violence. Because this case involves mere possession and the firearm was not found on
the Defendant, this factor weighs in favor of release.
The second factor also weighs in favor of release. No officers ever observed the Defendant
with a firearm, nor with a bulge indicating possession of such a firearm. Rather, they apparently
observed the Defendant hand something to a person that dropped a firearm and fled. The strength
of the evidence against the person that fled is strong, but that person is not the Defendant. And
there is no conspiracy allegation, let alone guilt by association.
Regarding the third factor—the defendant’s history and characteristics—the Defendant has
strong ties to the community, remarkable family support, and been successful on his most recent
period of pre-trial supervision. He is a lifelong resident of the area. Prior to the arrest on the now-
7 dismissed charge, he was residing with his brother, the textbook candidate for a third-party
custodian. His brother is a trusted member of law enforcement, a firefighter of several years. He
owns a home with his wife and three children. There was no doubt in the Court’s mind that this
custodian will faithfully ensure the conditions of release are enforced. The custodian is a stabilizing
force in the Defendant’s life.
The government points to his criminal history as the primary reason for this factor to weigh
in favor of detention. Specifically, they argue that his prior convictions as well as the non-
prosecuted case indicate his serious criminal history. The Court gives little weight to cases that
were not formally charged, let alone tried to a verdict. It is impossible to know the reason that the
government failed to charge that case. To find otherwise flies in the face of not only the
presumption of innocence and due process, but basic fairness. As to his prior cases, the Defendant’s
most serious conviction was many years ago. Moreover, the Defendant demonstrated compliance
during his recent time on pretrial supervision for the related charge in Superior Court. Pretrial
Services noted his compliance. Taking all of this into account, the Defendant’s strong community
and family ties outweigh his older, criminal history. Thus, the Court concludes that the third factor
weighs strongly in favor of release.
Regarding the fourth factor—danger to individual or community—the Government has
failed to “identify an articulable threat posed by the defendant to an individual or the community.”
Munchel, 991 F.3d at 1283. They argue merely that he presents a danger of introducing firearms
into the community. But even in cases where a defendant planned criminal activity in advance,
brought multiple lethal weapons and tasers to harm public officials, encouraged others to try to
overthrow the government, and more, courts have found no articulable threat. See Taylor, 2021
WL 2439231, at *1 (discussing Munchel January 6 defendants). “If these [Munchel and Taylor]
8 facts are insufficient to support a finding that the defendants posed an articulable threat to the
community . . . then the facts here [which are far less dangerous] are likely insufficient as well.”
Id. at *2 (internal citations and quotation marks omitted). Moreover, the Government “has
proffered nothing that indicates that [the Defendant] will continue to engage in criminal activity.”
Khanna, 703 F. Supp. at 1314. And, the Court has ordered a combination of conditions that
reasonably assure—it bears repeating Congress set sets this standard low, not high—the safety of
the community. See supra. In fact, the Court has increased the severity of the prior restrictions by
now placing the Defendant on home detention. With no articulable threat nor evidence of a
likelihood to continue engaging in criminal activity, the fourth factor weighs strongly in favor of
release. Two facts bear special note: First, that the undersigned is the second judge to determine
that the instant offense does not warrant detention. That two judges have independently come to
the same conclusion indicates a low likelihood of success when the government takes its third bite
at the apple. Second, the undersigned cannot recall the last time when all four factors weighed in
favor of release. That again reflects a low likelihood of success.
Based on the forgoing reasons, the Government has failed to meet its burden to prove that
the Defendant is a danger to the community. And the Government “failed to indicate any additional
information that the Court did not factor into its decision or any information that it could obtain to
add detail to its argument.” United States v. Pavon-Andino, No. 25-mj-022, 2025 WL 446143, at
*4 (D. Colo. Feb. 10, 2025). “Therefore, the government is unlikely to succeed on the merits of its
motion to revoke release order, and the first [Nken] factor weighs against . . . imposition of the
stay.” Khanna, 703 F. Supp. at 1313.
Irreparable Harm to Government
9 “The second [Nken] factor requires more than the mere possibility of irreparable injury.
Irreparable harm must be both certain and great.” M.M.V. v. Barr, 459 F.Supp.3d 1, 4 (D.D.C.
2020) (internal citations and quotation marks omitted). Importantly, “[w]here there is a low
likelihood of success on merits, a movant must show a proportionally greater irreparable injury.
M.M.V., 459 F.Supp.3d at 4. Thus, “given the low likelihood of success on the merits, the question
is whether this showing alone warrants a stay pending appeal.” Id. at 5. Here, it does not. Because
the Government “is unlikely to prevail on the merits on appeal, it will not be irreparably harmed
if the stay is revoked.” Order 7, United States v. Sabb, No. 4:24-cr-045 (N.D. Okla. Aug. 7, 2024),
ECF No. 185. Further, any harm to the government is not irreparable, as the Defendant could be
re-detained if the District Judge reverses the appeal decision. Indeed, that is the very thing that has
already happened to him in Superior Court (i.e., detention on the now-dismissed warrant after he
was released in the initial case).
Harm to Defendant
“Unlike the [G]overnment, [the Defendant] will suffer substantial harm through . . . the
stay of release order.” Khanna, 703 F. Supp. at 1316. Pending the appeal, the Defendant will be
detained pretrial, likely several days before any appeal may be heard. 2 The loss of liberty is a harm
that is substantial. “As recognized by other courts, loss of liberty for the time of pretrial detention
2 “Between 1983—the year before Congress enacted the Bail Reform Act—and 2019, federal pretrial incarceration rates skyrocketed from less than 24% to 75%. See Alison Siegler et al., Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis, Univ. Chi. L. Sch. Fed. Crim. Just. Clinic 1, 20–22 (Oct. 2022), https://freedomdenied.law.uchicago.edu/report [hereinafter Freedom Denied]. In the same timeframe, the average length of pretrial detention increased from less than two months to almost a year. See id. at 23.” United States v. McLean, 749 F.Supp.3d 167, 169 (D.D.C. 2024).
10 is irretrievable regardless of the outcome at trial.” United States v. Khanna, 703 F. Supp. 1309,
1316 (N.D. Okla. 2023) (quoting Page v. King, 932 F.3d 898, 904 (9th Cir. 2019)).
But the harm goes beyond loss of liberty. During the pendency of a stay, a defendant in
pretrial detention is likely to:
- lose their job 3;
- have limited to no contact with family 4;
- have limited to no contact with their lawyer 5;
3 In one study, 7.1% of people held in pretrial detention for one to three days lost their jobs. See Sandra Susan Smith, How Pretrial Incarceration Diminishes Individual’s Employment Prospects, Fed. Prob., Dec. 2022, at 11, 13. This number ballooned to 30.0% for those who spent four to seven days in pretrial detention. See id. 4 Someone detained pretrial has no “right to be free from punishment.” Bell v. Wolfish, 441 U.S. 520, 534 (1979). They, therefore will be “involuntarily confined and deprived of the freedom ‘to be with [their] family . . . .’” Id. at 569 (Marshall, J., dissenting) (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972). The costs of compliance with visitation protocols in some pretrial facilities have been described as “so high as to lead detainees to forgo visits with friends and family altogether.” Id. at 593 (Stevens, J., dissenting). And the effects of limited contact do not only affect those detained: one study noted that their children “may share many of the same risk factors” as children of a convicted parent, including “psychological strain, antisocial behavior, suspension or expulsion from school, economic hardship, and criminal activity.” Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, Nat’l Inst. Just., March 1, 2017, at 1, 1–2. 5 A Department of Justice review exploring concerns detainees and their counsel face in relevant pretrial facilities found that some attorneys reported “routinely wait[ing] more than an hour to meet with clients in a private room” for counsel. Advisory Grp. of DOJ Components, DOJ, Report and Recommendations Concerning Access to Counsel at the Federal Bureau of Prisons’ Pretrial Facilities 1, 19 (2023) (comprehensive “review of current practices and policies related to access to counsel in Bureau of Prisons . . . pretrial facilities”). Because, “[g]enerally, pretrial facilities had limited equipment” and staffing to support virtual meetings between counsel and their clients, interviewed attorneys were presented with “a difficult choice” of whether to speak with a client in public spaces when no suitable private space was available. Id. at 20, 23.
11 - have easy access to illegal narcotics 6; and
- witness or experience traumatic violence. 7
The harm of pretrial detention was so grave that one federal judge, “citing complaints of dreadful
conditions, near perpetual lockdowns and grave staffing shortages in a long-troubled federal jail
in Brooklyn, refused [] to order a man convicted in a drug case to be sent there while awaiting
sentencing.” See Benjamin Weiser, Judge Refuses to Send Defendant in Drug Case to Troubled
Brooklyn Jail, New York Times (Jan. 4, 2024),
https://www.nytimes.com/2024/01/04/nyregion/brooklyn-judge-mdc-jail.html. All of this plays
out against an unrebuttable “presumption of innocence.” 18 U.S.C. § 3142(j). 8
6 In 2024, the Department of Justice’s Office of the Inspector General published a study researching, among other things, the increasing prevalence of illegal narcotics in federal facilities. See Evaluation and Inspections Div., DOJ, Evaluation of Issues Surrounding Inmate Deaths in Federal Bureau of Prisons Institutions 55–57 (2024). At the same time, county jails—which often house pretrial detainees on local or state charges—saw a 200% increase in overdose deaths from 2001 to 2018. See Beth Schwartzapfel & Jimmy Jenkins, Overdose Deaths in State Prisons have Jumped Dramatically Since 2001, NPR (July 15, 2021, 6:00 AM), https://www.npr.org/2021/07/15/1015447281/overdose-deaths-state-prisons-increase [https://perma.cc/QEK3-S5W3]. In these settings, “drug use is not only widespread . . . but also uniquely dangerous” due to frequently ineffective treatment mechanisms. Id. 7 Between 2008 and 2019, at least 4,998 people died while detained pretrial. Peter Eisler et al., Why 4,998 Died in U.S. Jails Without Getting Their Day in Court, Reuters (Oct. 16, 2020, 11:00 AM), https://www.reuters.com/investigates/special-report/usa-jails-deaths/ [https://perma.cc/XMK7-XS3P]. Additionally, “a growing body of literature describes [relevant pretrial facilities] as especially chaotic and disorderly and as settings where critical needs and challenges may consistently go unaddressed.” Elisa L. Toman et al., Jailhouse Blues?: The Adverse Effects of Pretrial Detention for Prison Social Order, 45 Crim. Just. & Behav. 316, 320 (2018). Exposure to the specific and general harms that pretrial detainees experience can result in long-lasting trauma. See id. at 320–21.
8 The Bail Reform Act clearly outlines that detention decisions shall not “be construed as modifying or limiting the presumption of innocence.” 18 U.S.C. § 3142(j).
12 Such consequences highlight why “it is fundamental that an individual has a ‘strong interest
in liberty.’” Khanna, 703 F. Supp. at 1316 (quoting Salerno, 481 U.S. at 750). Thus, the third Nken
factor weighs strongly against staying the release order.
Public Interest
Finally, the public interest weighs against staying the release order. As discussed in the
first Nken factor, the Defendant does not pose an articulable threat to the public’s safety. See supra
Part III.B.1. Moreover, “pretrial detention comes at a cost. Taxpayers spend over $1 billion
annually to jail defendants before trial.” McLean, 749 F. Supp. 3d at 169 n.1 (citing Freedom
Denied). The Defendant’s detention adds to this public cost. Further, “[i]n our society liberty is
the norm, and detention prior to trial or without trial is the carefully limited exception.” Munchel,
991 F.3d at 1279 (quoting Salerno, 481 U.S. at 755). “Given the improbability that the government
will satisfy its burden to show that [the Defendant] falls within a “carefully limited exception,” the
public interest weighs in favor of revocation of the stay.” Khanna, 703 F. Supp. at 1316.
Thus, all Nken factors weigh against a stay and the Court denies the government’s request.
To be clear, the government may appeal this order along with the release order to the assigned
district judge. “However . . . the mere request for a stay does not require the issuance of one.”
Pavon-Andino, 2025 WL 446143, at *4.
13 IV. CONCLUSION
At bottom, this court cannot square the government’s view that stays should be automatic
against the sacred principle that a defendant is presumed innocent. Courts must take actions for
this principle to have meaning. This is not to say that stays will be automatically rejected. Rather,
judges must do what they do in every other civil case—where the stakes are so much lower than
in a criminal case—and apply the Nken factors to determine if a stay is appropriate.
Date: April 15, 2025 ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE