WASHINGTON — A federal magistrate judge on Tuesday declined to jail a 20-year-old Maryland man and repeatedly questioned why the Justice Department used a statute strengthened by antiterrorism legislation to charge him for possession of a “firework.”
Last month, a federal grand jury indicted Drew Mason, of Adelphi, Maryland, on three felony counts for allegedly carrying an explosive device while attempting to sell marijuana at the Rhode Island Metro Station. Mason had originally been charged in D.C. Superior Court in July on a single count of possession of marijuana with intent to distribute, but that case was dismissed in December for want of prosecution. According to Superior Court records, Mason had rejected a plea offer from the government and requested a bench trial prior to the case being dismissed.
Mason was re-arrested this week and made his initial appearance before Harvey facing a request from federal prosecutors that he be detained. In a detention memo filed Monday, the U.S. Attorney’s Office for the District of Columbia argued Mason had recklessly carried an “illegal homemade explosive device around a busy Metro station just before rush hour.”
In court Tuesday, Assistant U.S. Attorney Cameron A. Tepfer said Mason was first arrested after what he described as a “failed drug deal and robbery,” although he acknowledged Mason was not charged with robbery because police were unable to identify the apparent victim. Tepfer said Mason fled the scene, appearing on security footage to leave his backpack behind bushes near the station, and then attempted to recover it from police after returning.
Inside the bag, police found $600 in cash, a bag of marijuana, several pre-packaged bags labeled “Cannabis Flower,” smaller clear plastic baggies and a digital scale. They also found what prosecutors said an ATF agent later identified as a homemade explosive device containing 6.2 grams of flash powder. The legal limit for possessing flash powder is 50 milligrams for devices intended to explode on the ground. Aerial fireworks can contain up to 130 milligrams.
“An ATF expert will testify that you cannot buy this device at any fireworks stand in the United States,” Tepfer said Tuesday.
Harvey, however, repeatedly pushed back on Tepfer’s characterization of the device – which he compared to the M-80 firework banned the 1970s – and pointed out the extremely serious consequences of one of the statutes under which Mason was charged. The statute, 18 U.S. Code § 844(h)(2), became law as part of Organized Crime Act of 1970 and originally mandated a penalty of one to 10 years in prison for carrying an explosive device in the commission of any other felony. Following the bombings of the World Trade Center in New York and the Alfred P. Murrah Federal Building in Oklahoma City, the statute was amended as part of the the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 to carry a mandatory minimum sentence of 10 years in prison. That sentence must be served consecutive with any other prison time imposed
Harvey, a former federal prosecutor with the Justice Department’s national security section, questioned why prosecutors had waited “months and months” to indict Mason and seek detention if he was a danger to the community.
“You indicated they did not see the firework – the explosive device – immediately. Did they not see it for seven months?” Harvey asked.
The judge also said the evidence presented by prosecutors was slim that Mason had carried the device – which he reportedly told police he’d bought on the street – in furtherance of selling drugs.
“I’m not sure how that would work,” Harvey said. “If he’s trying to defend his drug trade, and another guy approaches him with a gun, is he going to pull it out and light it and wait 15 seconds?”
Mason’s attorney, Michael Lawlor, said he was shocked by the DOJ’s charging decision.
“I find the filing of a 10-year mandatory felony extremely troubling,” he said.
Harvey ultimately denied the DOJ’s request for pretrial detention and ordered Mason into home detention on GPS monitoring and under the supervision of his mother. He said while prosecutors might have a “decent” case under the law, the evidence of Mason’s dangerousness was not “particularly strong.”
“He appears to me to be a 20-year-old young man who had a firework in his backpack next to his weed,” Harvey said.
Mason’s case was assigned to U.S. District Judge Loren AliKhan, who was elevated to the federal bench in December by President Joe Biden after previously serving as an associate judge for the D.C. Court of Appeals.