UNITED STATES OF AMERICA, v. NELSON DOMINIQUE BRYANT, Defendant.
No. 25-cr-0097-JDB
April 15, 2025
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
“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
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
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
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.
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.”
(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
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).
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.
1. 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)).
appearance of the person as required and the safety of any other person and the community.”
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
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-
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.
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]
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.
2. Irreparable Harm to Government
“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 redetained if the District Judge reverses the appeal decision. Indeed, that is the very thing that has already happened to him in Superior Court
3. 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
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 job3;
- have limited to no contact with family4;
- have limited to no contact with their lawyer5;
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.”
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.
4. 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.
IV. CONCLUSION
At bottom, this court cannot square the government’s view that stays
Date: April 15, 2025
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE