United States v. Henry

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 17-216-01 (CKK) TIFFANY HENRY,

Defendant.

MEMORANDUM OPINION (December 21, 2018)

On December 19, 2018, Defendant Tiffany Henry (1), through counsel, filed a [122]

Motion for Holiday Release (“Def.’s Mot.”) requesting permission to be released from her halfway

house placement from December 24, 2018, at 8:00 PM, through December 25, 2018, at 8:00 PM,

for the purpose of spending Christmas with her family at her family’s home in Vienna, Virginia.

The Government filed its [123] Opposition to the Defendant’s Motion for Holiday Release (“Gov’t

Opp’n”) on December 20, 2018, reiterating, inter alia, that the Court’s prohibition of social passes

must mean it was part of the “least restrictive measure” under which Ms. Henry could be released

before trial while preserving the safety of any other person and the community. Gov’t Opp’n at 3;

see also 18 U.S.C. § 3142(c)(1)(B). In her [124] Reply (“Def.’s Reply”) on December 20, 2018,

Ms. Henry insists that her temporary release would not endanger the community, argues that the

Court should not fall back on its prior reticence, and should recognize her father as an appropriate

third-party custodian for this limited release. 1 For the reasons set forth herein, however, Ms.

Henry’s request is DENIED.

1 At the Clerk’s request, Ms. Henry re-filed her Motion and Reply at docket entries 125 and 126, respectively, to correct a clerical error. There is no indication that the substance of those filings has changed. 1 On November 13, 2017, Ms. Henry was charged in a five-count Indictment with:

Conspiracy to Distribute and Possess with Intent to Distribute Marijuana and Cocaine (Count

One); Unlawful Use of a Communication Facility (Count Two); Unlawful Distribution of

Marijuana (Count Three); Unlawful Possession with Intent to Distribute Marijuana (Count Four);

and Unlawful Possession with Intent to Distribute Cocaine (Count Five). Subsequent to the

indictment, Magistrate Judge Michael Harvey issued an arrest warrant for Ms. Henry.

Ms. Henry appeared in court before Magistrate Judge Harvey, on November 15, 2017, for

her initial appearance and arraignment, and she entered a plea of not guilty on all charges. The

Government made an oral motion for pretrial detention and Magistrate Judge Harvey scheduled a

November 20, 2017, detention hearing in response thereto. At the conclusion of the November

20, 2017, detention hearing, Magistrate Judge Harvey denied the Government’s motion for

detention and released Ms. Henry to a halfway house. The Government appealed that ruling, and

on November 30, 2017, this Court held a hearing on the issue of whether Ms. Henry should be

released or detained pending trial. The Court determined that Ms. Henry could be released pending

trial but that such release would be made 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.

Dec. 1, 2017 Mem. Op. and Order, ECF No. 22, at 2. Those conditions reflected the Court’s

assessment of the least restrictive combination of conditions that would reasonably assure the

safety of any other person and the community. 18 U.S.C. § 3142(c)(1)(B). On December 11,

2017, Ms. Henry was transported to and placed in a halfway house.

Since this release into the community, Ms. Henry has chafed at the prohibition of social

passes. On December 20, 2017, Ms. Henry moved for a social pass from the halfway house in

2 order to spend several days with her family for Christmas. Over the Government’s objection, the

Court granted-in-part and denied-in-part Ms. Henry’s request, permitting her release on December

25, 2017, from 9:00 a.m. until no later than 5:00 p.m. In doing so, the Court found that

Since being placed in the halfway house on December 11, 2017, Ms. Henry has been compliant with the rules and regulations of the halfway house; she has reported to PSA by telephone as required; she has been actively seeking employment; and she has tested negative for illegal substances at her December 14, 2017 and December 21, 2017 drug tests.

Dec. 22, 2017 Mem. Op., ECF No. 30, at 3. In light of “Ms. Henry’s desire to spend time with her

family during the Christmas holiday,” the Court made “a one-time exception to the condition of

‘no social passes.’” Id. (emphasis added).

The Court denied Ms. Henry’s next two requests for a social pass, in January 2018 and

November 2018. Her repeated requests demonstrated an attempted end-run around a “key

condition[ ]” of her [19] Release Order, namely that social passes were prohibited. Jan. 26, 2018

Mem. Op., ECF No. 38, at 3-4; Nov. 21, 2018 Mem. Op., ECF No. 108, at 3.

Ms. Henry appears to remain in compliance with the Court’s Release Order, with one

possible exception. As of November 27, 2018, the halfway house had not notified PSA of any

infractions by Ms. Henry; she was continuing to report to PSA by telephone; she was maintaining

her employment; and she was testing negative for illegal substances. 2 Not long beforehand,

however, PSA noted that it issued a verbal warning to Ms. Henry for water loading after one of

her recent drug tests. In turn, the Court expressed concern at its Status Hearing on October 31,

2018, about the several instances in which Ms. Henry has been found possibly engaging in water-

loading. See, e.g., Min. Order of Oct. 31, 2018; Min. Order of Apr. 4, 2018. The Court cannot

2 As anticipated by the Court’s previous discussion of Ms. Henry’s prescription, she has continued to test positive for Amphetamines. See Dec. 1, 2017 Mem. Op. and Order, ECF No. 22, at 5.

3 recall any instance in which Ms. Henry has challenged PSA’s conclusion that she was water

loading.

Despite evidence that Ms. Henry is complying with the Court’s [19] Release Order, the

Court cannot treat this fourth request for a social pass in the same way that it handled the first and

only such request that it granted. “Ms. Henry’s compliance with the conditions imposed on

her . . . is merely what is expected of her, and as such, it does not warrant her release . . . .” Dec.

22, 2017 Mem. Op., ECF No. 30, at 3. As the Court has previously discussed, one of the key

conditions to Ms. Henry’s pretrial release was the Court’s adoption of the condition that Ms. Henry

have no social passes.

Now that Ms. Henry seeks a social pass for a fourth time, the Court shall further distinguish

the pass that it granted last Christmas. At the time, the Court had limited information. Discovery

was in its infancy. See Min. Order of Dec. 4, 2017 (discussing initial discovery). The Government

did not supply any details of that discovery in opposing Ms. Henry’s first Motion for Holiday

Release. Rather, the Government simply argued that Ms. Henry failed to identify any factual

developments that could justify an exception to the Court’s then-recent release order prohibiting

social passes. Dec. 21, 2017 Gov’t’s Opp’n to Def.’s Mot. for Holiday Release, ECF No. 27, at 3.

Since then, the Government has frequently discussed, in hearings and filings, the large volume of

evidence recovered from Ms. Henry’s apartment. The Government’s Opposition to the pending

motion attaches, for the first time, a sampling of photographs documenting that evidence. See

Gov’t Opp’n at 10 & Ex. A. The Government has alleged that Ms. Henry deployed her intelligence

and training to facilitate a large-scale drug distribution conspiracy with a substantial online

component. Id. at 10-11. Products recovered from the apartment included “large digital scales,

money counter, beakers, packaging materials, waxes, shatters and edibles,” together with more

4 than $75,000 in cash. Id. at 11-12. Ms. Henry fails to acknowledge that the drugs in the apartment

included not only marijuana, but also cocaine. Although the Court is not ruling on merits issues,

the Government’s proffer of evidence does raise grave concerns for the Court.

Moreover, the Government’s filings in 2018 have elaborated its concerns about activities

in which Ms. Henry could engage if she were released and wholly unsupervised. Those concerns

include her “full and unmonitored access to the internet,” as well as the potential for “open

telephone conversations,” “contact with individuals and unindicted co-conspirators,” “contact with

potential government witnesses,” and unfettered travel beyond her family’s home. Id. at 12.

In opposing Ms. Henry’s November 2018 request, if not earlier, the Government explained

that Ms. Henry’s mother was one of the apartment’s lessees, and that, “[u]pon information and

belief, the defendant’s mother frequented that apartment and arguably condoned the defendant’s

illegal narcotics activities.” Nov. 20, 2018 Gov’t’s Opp’n to Def.’s Mot. for Holiday Release,

ECF No. 105, at 2-3. As the Government now demonstrates in its photographs, the copious

narcotics and accoutrements “were in plain view” when the search warrant was executed. Id.

(noting also that the narcotics issued a “very strong [odor] throughout the apartment”). Although

the cocaine was not in plain view, Ms. Henry was charged with cocaine offenses along with her

co-conspirators.

Again, without commenting on the merits, the Court makes clear that the indicted offenses

carry significant potential penalties. The fact that Ms. Henry has not been charged with a violent

crime, or arrested with firearms in her apartment, does not fully mitigate the dangerousness of her

indictment for drug trafficking crimes. See United States v. Alatishe, 768 F.2d 364, 370 n.13 (D.C.

Cir. 1985); see also United States v. Strong, 775 F.2d 504, 506 (3d Cir. 1985) (explaining that the

Bail Reform Act’s “statutory language, as well as the legislative history, unequivocally establishes

5 that Congress intended to equate traffic in drugs with a danger to the community”).

The Court is concerned that Ms. Henry’s family may not fully appreciate the seriousness

of these charges. For its part, the Government reiterates its view that Ms. Henry’s family cannot

necessarily be depended upon to enforce the Court’s conditions. Assuming, arguendo, that the

Court’s only concern was Ms. Henry’s contact with her mother, the proposed release into the

custody of her father is a distinction without a difference. Her parents reside in the same home.

See Def.’s Mot. at 5 & n.7. The Government is not satisfied that Ms. Henry’s father—whom she

proposes as third-party custodian for this release—or any other family member would be more

likely to identify and report any violations of release conditions. Gov’t Opp’n at 13. Ms. Henry’s

Reply includes a declaration from her father, Douglas Henry, that purports to reassure the Court

that he would actively supervise Ms. Henry during the holiday release. See Decl. of Douglas

Henry in Supp. of Def.’s Mot. for Holiday Release, ECF No. 124-1. In its [19] Release Order, the

Court decided not to release Ms. Henry into third-party custody. None of the developments in this

case persuades the Court to alter that decision, either for the Christmas holiday or the longer term.

When the Court adopted Magistrate Judge Harvey’s decision to release Ms. Henry into a

halfway house, the Court agreed that the prohibition of social passes was part of the least restrictive

combination of conditions that would reasonably assure the safety of the community. See Dec. 1,

2017 Mem. Op. and Order, ECF No. 22, at 6 (citing 18 U.S.C. § 3142(c)(1)(B)). There has been

no new information since the Court’s last decision, in November 2018, to deny an exception that

would persuade the Court to grant such an exception now. The underlying reason for the

prohibition of social passes remains unchanged.

6 For the foregoing reasons, Ms. Henry’s [122] Motion for Holiday Release is therefore

DENIED. A separate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge