United States v. Foy
Criminal No. 2021-0108
| D.D.C. | Jul 2, 2021Background
- Michael J. Foy, a former U.S. Marine with no prior criminal record, was indicted on eight counts arising from January 6, 2021, including obstruction of an official proceeding and assaulting officers with a dangerous weapon (a hockey stick).
- Video and photographic evidence show Foy throwing a projectile, repeatedly swinging a hockey stick at officers at the Lower West Terrace, encouraging others forward, and climbing through a broken window into the Capitol; a matching hockey stick was later found at his Michigan residence.
- Foy was initially ordered detained after a magistrate hearing; he filed motions for bond review and a renewed motion for release to this court.
- The government argued a rebuttable presumption of detention under 18 U.S.C. § 3142(e) applied because Foy was charged with a crime of violence; Foy later contested that the statutory presumption applied.
- The court concluded the § 3142(e)(2) presumption did not apply (no qualifying prior conviction), weighed the § 3142(g) factors, and—balancing the serious evidence against Foy with his history and characteristics—granted release to home confinement with GPS monitoring and supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of rebuttable presumption under 18 U.S.C. § 3142(e)(2) | Government: presumption applies because Foy is charged with a crime of violence. | Foy: statutory text is conjunctive; presumption requires prior qualifying conviction, which he lacks. | Court: Presumption does not apply; § 3142(e)(2) requires all elements, including a prior qualifying conviction. |
| Whether conditions can reasonably assure safety/appearance under 18 U.S.C. § 3142(g) | Government: weighty evidence of violent assault and breach supports detention as danger to the community. | Foy: no prior record, honorable military service, no evidence of planning/coordination or post-riot celebration; will comply with strict conditions. | Court: Although conduct was grave and evidence strong, Foy’s history leans toward release; the court ordered home confinement with GPS as sufficient conditions. |
Key Cases Cited
- Salerno v. United States, 481 U.S. 739 (1987) (liberty is the norm; pretrial detention is the limited exception)
- United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021) (dangerousness standard for Jan. 6 cases; requirement to identify an articulable threat)
- United States v. Vasquez-Benitez, 919 F.3d 546 (D.C. Cir. 2019) (flight risk and danger framing under the Bail Reform Act)
- United States v. Smith, 79 F.3d 1208 (D.C. Cir. 1996) (application of § 3142(g) factors)
- United States v. Taylor, 289 F. Supp. 3d 55 (D.D.C. 2018) (presumption imposes burden of production on defendant)
- United States v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985) (presumption requires defendant to produce some evidence)
- United States v. Mercedes, 254 F.3d 433 (2d Cir. 2001) (even if rebutted, presumption remains a factor)
- United States v. Ali, 793 F. Supp. 2d 386 (D.D.C. 2011) (discussion of presumption and § 3142(g) analysis)
- United States v. Barner, 743 F. Supp. 2d 225 (W.D.N.Y. 2010) (§ 3142(e)(2) requires all subparagraphs to be satisfied)
- United States v. King, 849 F.2d 485 (11th Cir. 1988) (danger to community must be an articulable threat)