UNITED STATES v. ABASS (2025)

MEMORANDUM OPINION AND ORDER

Typically, when a magistrate judge orders a defendant's release, that order is automatically suspended. No longer. Instead, the Court will analyze the four “traditional stay factors” established in Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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, 129 S.Ct. 1749 (internal quotations omitted) (quoting Scripps–Howard Radio, Inc. v. FCC, 316 U.S. 4, 9, 62 S.Ct. 875, 86 L.Ed. 1229 (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, 129 S.Ct. 1749 (emphasis added).

“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, 129 S.Ct. 1749).

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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)).

B. Defendant's Release Order

On March 25, 2025, a grand jury in the District of Columbia returned an indictment charging Mr. Abass with a single count of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). See Indictment 1, ECF. No 1. The Government alleges that on March 14, 2025, patrolling officers in two police cruisers observed a silver Nissan Maxima parked near a stop sign. See Gov't Memo. Support Pretrial Det. (“Gov't Mot.”) 3, ECF No. 6. The police cruisers turned onto a perpendicular street and observed the Nissan turn onto a different street. See id. at 3. As the cruisers came to a stop, they observed a male with a black jacket—Mr. Abass—exit the left passenger door of a gray sedan and run in the direction of the Maxima. See id. One officer chased down Mr. Abass, eventually observing him with both arms bent in front of his body. See id. at 4. As Mr. Abass approached the Maxima, the officer observed him open the front passenger door, but the car drove away before he could enter it. See id. The officer then grabbed Mr. Abass. See id. No officers observed Mr. Abass with a bulge in any pockets nor did they ever see him in possession of a firearm. See id. Rather, as Mr. Abass was attempting to enter the Maxima, two officers heard a metallic sound. See id. at 5. The officers then found a firearm on the street near where Mr. Abass was being stopped. See id. In a search incident to arrest, an officer found approximately 35 pills thought to be controlled substances that require a prescription which Mr. Abass did not have. See id. at 5–6.

On April 8, 2025, Mr. Abass appeared before the undersigned for an initial appearance. During that hearing, the Government requested pretrial detention. The Court ordered Mr. Abass temporarily detained until the detention hearing set for April 11, 2025. At the detention hearing, the Court ordered Defendant released subject to certain conditions, including home incarceration, around-the-clock supervision by his two third-party custodians—his mother, a dedicated federal public servant of more than twenty years and his sister, a physics teacher currently pursuing her PhD—remote camera monitoring of the residence, 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. Having previously flagged Nken for the parties, the Court then heard argument on application of the four factors. Ultimately, 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.” 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 (D.D.C. 2024) (citing Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382, 143 S.Ct. 1689, 216 L.Ed.2d 342 (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, 129 S.Ct. 1749 (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, 128 S.Ct. 761, 169 L.Ed.2d 627 (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).

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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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, 129 S.Ct. 1749.

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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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 Mr. Abass 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 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, 107 S.Ct. 2095. “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, Mr. Abass is charged with a single count of felon in possession. See Indictment. On March 14, 2025, law enforcement officers allegedly found Mr. Abass in constructive possession of a firearm. See Gov't Mot. at 5. Courts have repeatedly held that the possession of a firearm is not a crime of violence. Because this case involves mere possession, this factor weighs in favor of release.

The second factor weighs in favor of detention, albeit barely. No officers ever observed Mr. Abass with a firearm, nor with a bulge indicating possession of such a firearm. Rather, they observed Mr. Abass exit a vehicle and run towards another. See id. at 3-4. While chasing him, they heard a metallic sound near the vehicle he was running towards. See id. at 5. Soon after, they found a firearm close by. See id. While this evidence amounts to probable cause that Mr. Abass constructively possessed a firearm, it is not particularly strong evidence of the crime. Ultimately, less-than-ideal evidence can still be weighty enough to favor detention. Thus, “this factor weighs in favor of detention.” Order 5, United States v. Sabb, No. 4:24-cr-045 (N.D. Okla. Aug. 7, 2024), ECF No. 185.

Regarding the third factor—the defendant's history and characteristics—Mr. Abass has strong ties to the community, a nonviolent criminal history, and been successful on his most recent period of supervision. He is a lifelong resident of the area, currently residing in Bowie, Maryland. See Def.’s Opp'n Gov't’s Mot. Preventative Det. (“Opp'n”) 2, ECF No. 7. He lives with his mother, Vera Procter, who as noted above is a dedicated federal public servant. See id. at 2. He takes his 4-year-old daughter to day care daily and has custody of her every other weekend. See id. Multiple letters from his family attested to the bond between Mr. Abass and his daughter. See e.g., id. at Ex. C. His strong family ties were further evident at the detention hearing where both his mother and sister testified. In particular, his sister—a PhD candidate at George Washington University—spoke about a side of her brother that only those who live with him would know, a man different than the one officers would see “on the streets.” In addition to his family ties, Mr. Abass has ties to his neighborhood and church. See id. at Ex. B.

The government points to his criminal history as the sole reason for this factor to weigh in favor of detention. See Gov't Mot. at 7–9. Specifically, they argue that his six prior convictions as well as at least one no-papered case indicate his serious criminal history. See id. The Court gives little weight to cases that were not formally charged. It is impossible to know the reason that the government failed to do so. 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, Mr. Abass has no violent convictions. See Opp'n at 7. Moreover, Mr. Abass demonstrated compliance during his most recent two-plus years of supervision. See id. at 7. Taking all of this into account, Mr. Abass's strong community and family ties outweigh his older, non-violent 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 because they found narcotics in the search incident to Mr. Abass's arrest, he presents a danger of drug trafficking and introducing firearms into the community. See Gov't Mot. at 9. 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 [Mr. Abass] will continue to engage in criminal activity.” Khanna, 703 F. Supp. 3d 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: namely 24-hour supervision by his mother and sister, remote camera monitoring of the residence, no visitors permitted outside of immediate family, and GPS monitoring. With no articulable threat nor evidence of a likelihood to continue engaging in criminal activity, the fourth factor weighs strongly in favor of release.

Based on the forgoing reasons, the Government has failed to meet its burden to prove that Mr. Abass 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. 3d 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 re-detained if the District Judge reverses the appeal decision.

3. Harm to Defendant

The government suggested that there is no harm to the defendant from granting a stay. They could not be more wrong. “Unlike the [G]overnment, [Mr. Abass] will suffer substantial harm through ․ the stay of release order.” Khanna, 703 F. Supp. 3d at 1316. Pending the appeal, Mr. Abass will be detained pretrial at least, though likely more than, three days because of impending weekend following the detention hearing.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. 3d 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;

- 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

Such consequences highlight why “it is fundamental that an individual has a ‘strong interest in liberty.’ ” Khanna, 703 F. Supp. 3d at 1316 (quoting Salerno, 481 U.S. at 750, 107 S.Ct. 2095). 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, Mr. Abass 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). Mr. Abass'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, 107 S.Ct. 2095). “Given the improbability that the government will satisfy its burden to show that [Mr. Abass] falls within a “carefully limited exception,” the public interest weighs in favor of revocation of the stay.” Khanna, 703 F. Supp. 3d 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 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.

FOOTNOTES

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.

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).

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, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). They, therefore will be “involuntarily confined and deprived of the freedom ‘to be with [their] family ․’ ” Id. at 569, 99 S.Ct. 1861 (Marshall, J., dissenting) (quoting Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (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, 99 S.Ct. 1861 (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.

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).

ZIA M. FARUQUI, UNITED STATES MAGISTRATE JUDGE