UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

DEON COLE, Case No. 1:20-cr-00044 (TNM)

Defendant.

MEMORANDUM AND ORDER

In February, a grand jury indicted Deon Cole on one count of unlawful possession of a

firearm and ammunition by a convicted felon. Indictment at 1, ECF No. 5. Magistrate Judge

Harvey ordered him detained pending trial. Order of Detention at 1, ECF No. 8. He is being

held at the D.C. Jail. Def.’s Mot. at 2, ECF No. 13. 1 Last week, Cole filed an emergency motion

to revoke Judge Harvey’s order of detention, citing the COVID-19 pandemic. Id. at 1. The

Government opposes Cole’s release. Gov’t Opp’n, ECF No. 14. Upon careful consideration of

the parties’ briefs, the relevant law, and the entire record of this case, the Court denies Cole’s

motion for the reasons below.

I.

According to the Government’s proffer, officers with the Metropolitan Police Department

encountered Cole in the early evening on February 13, 2020. Order of Detention at 3. While

patrolling a residential area in northeast D.C., they drove into an alley and observed several

people there. Id. Two officers saw Cole “walking away, going behind a vehicle, leaning over,

1 All page citations refer to the page numbers that the CM/ECF system generates. and doing something near his waistband.” Id. One officer approached Cole and told him she

was going to pat him down. Id. In response, he opened his jacket, started spinning, and said

“You can’t touch me.” Id. The second officer observed a bulge in Cole’s groin area “that had a

sharp line inconsistent with human anatomy.” Id. The first officer felt the object and determined

that it was a firearm. Id. The officers tried to recover the firearm, but Cole “moved around,

forcing the firearm deeper into his pants.” Id. The officers were eventually able to recover a

Glock Model 19, .9 millimeter handgun from Cole’s pants. Id. It was loaded with twelve rounds

of ammunition in the magazine. Id.; Criminal Compl. Statement of Facts at 1, ECF No. 1-1. The

firearm had been reported stolen. Criminal Compl. Statement of Facts at 1.

The officers read Cole his Miranda rights, and he waived them. Id. When asked where

he got the firearm, he stated that he was holding it for someone. Id. A criminal history check

revealed that Cole had a prior felony conviction in Maryland state court for armed robbery, for

which he was sentenced to 20 years in prison. Id. He was—and remains—on supervision for

that offense. Pretrial Services Report at 4, ECF No. 3.

Magistrate Judge Harvey granted the Government’s oral motion for temporary detention

at Cole’s initial appearance and set a detention hearing for February 19. Minute Entry (Feb. 14,

2020). On February 18, a grand jury indicted Cole on one count of unlawful possession of a

firearm and ammunition by a convicted felon, in violation of

(g)(1). Indictment

at 1.

At the hearing on February 19, Magistrate Judge Harvey ordered Cole detained pending

trial. Based on the factors in

(g), he concluded “[b]y clear and convincing

evidence that no condition or combination of conditions of release will reasonably assure the

safety of any other person and the community.” Order of Detention at 2. Among the reasons for

2 detention were the strength of the evidence, Cole’s prior criminal history, his participation in

criminal activity while on supervision, his history of violence and use of weapons, and his

history of substance abuse.

at 2–3.

Magistrate Judge Harvey made the following findings on the factors in § 3142(g).

First, the “nature and circumstances of the offense charged” favored detention, because

Cole, “a convicted felon on supervised release for a violent armed offense, was found in the

community with a concealed, loaded firearm.” Id. at 3. He had also resisted the officers’ efforts

to recover the firearm. Id.

Second, the Government’s evidence was “strong.” Id. The officers recovered a firearm

from Cole’s pants, and this encounter “was captured on body-worn camera footage.” Id. While

the Government “acknowledged that the alleged bulge in [Cole’s] pants is not visible in the

footage,” it proffered that this “was due to the angles of the camera lens and the movements of

the officers and [Cole].” Id. And Judge Harvey found that the camera footage “does reflect

reactions and statements of the officers that were consistent with their observation and recovery

of a firearm on [Cole’s] person.” Id.

Third, Cole’s “history and characteristics” also favored detention. Judge Harvey

recognized that Cole has “positive characteristics”—he is “a life-long resident of the D.C. area,

has family support, was employed, lives with his family, is young, and has only one adult

conviction.” Id. at 4. On the other hand, this prior conviction “was for using a gun during a

robbery.” Id. And while on supervised release for that offense, he “failed to report for drug

testing and has tested positive for cocaine and/or opiates on numerous occasions.” Id.

“Notably,” Judge Harvey continued, “just over a month before the instant offense, [Cole]

appeared for a Violation of Probation hearing for his supervision on that prior conviction, and

3 although he was placed back on supervision, his probation was revoked.” Id. Judge Harvey was

“also concerned by information on page 4 of the Pretrial Services Report.” Id.; see Sealed Suppl.

to Findings at 1, ECF No. 9.

Fourth, Judge Harvey determined that Cole’s release would pose “a danger to the

community.” Order of Detention at 4. The firearm in Cole’s possession had been stolen. Id.

While the Government had “no evidence suggesting [Cole] was involved in the theft,” his

possession of a stolen firearm “evidences a danger stemming from felons unlawfully possessing

firearms—specifically, that they facilitate the dangerous market for illegal weapons.” Id. More,

he “tested positive for cocaine and opiates at the time of his arrest in this matter.” Id. Cole’s

dangerousness was evident: as “a convicted felon on supervision for a violent offense involving

the use of a firearm,” he “was under the influence of narcotics on the street in a residential area

in possession of a concealed, loaded, stolen firearm.” Id.

Based on these detailed findings, the magistrate judge ordered Cole detained without

bond pending trial. Cole now asks this Court to revoke that order. Def.’s Mot. at 1. He invokes

and 3145.

“If a person is ordered detained by a magistrate judge, . . . the

person may file, with the court having original jurisdiction over the offense, a motion for

revocation or amendment of the order.”

(b). And a detention hearing “may be

reopened . . . at any time before trial if the judicial officer finds that information exists that was

not known to the movant at the time of the hearing and that has a material bearing on the issue

whether there are conditions of release that will reasonably assure the appearance of such person

as required and the safety of any other person and the community.”

§ 3142(f); see United

States v. Peralta,

, 626–27 (D.C. Cir. 1988). Cole also seeks release under the Fifth

and Eighth Amendments of the Constitution. Def.’s Mot. at 1.

4 The Court’s review of a magistrate judge’s detention order is de novo. United States v.

Hunt,

(D.D.C. 2017).

II.

A.

Cole first argues that, even setting aside the COVID-19 pandemic, the February 19

detention order was erroneous. Def.’s Mot. at 2, 16, 17 n.28. He seeks release on his personal

recognizance, or, in the alternative, on home confinement.

at 23–24.

The standards governing pretrial detention are in

. The Court “shall

order the pretrial release of the person on personal recognizance . . . unless [it] determines that

such release will not reasonably assure the appearance of the person as required or will endanger

the safety of any other person or the community.”

(b). If release on personal

recognizance is not appropriate, the Court must order pretrial release subject to conditions that

“will reasonably assure the appearance of the person as required and the safety of any other

person and the community.”

§ 3142(c)(1)(B). But the Court “shall order the detention of the

person before trial” if it finds by “clear and convincing evidence” that “no condition or

combination of conditions will reasonably assure the safety of any other person and the

community.” Id. § 3142(e)(1), (f). In making this determination, the Court must consider (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.” Id. § 3142(g).

The Court agrees with Magistrate Judge Harvey’s findings under § 3142(g) and his

conclusion that, “[b]y clear and convincing evidence . . . no condition or combination of

5 conditions of release will reasonably assure the safety of any other person and the community.”

Order of Detention at 2.

First, the nature and circumstances of the offense charged favor pretrial detention. While

on supervision for armed robbery—a violent offense—Cole was in a residential area with a

concealed, loaded firearm. Id. at 3. He apparently resisted the officers’ attempts to recover this

firearm. Id. These circumstances are concerning. Cole asserts that the charge—unlawful

possession of a firearm and ammunition—is of a “nonviolent nature.” Def.’s Mot. at 1. But

carrying a loaded firearm—especially if the carrier has a violent history, including a conviction

for armed robbery—has the great potential to escalate into violence. If, as the Government

alleges, Cole was under the influence of cocaine and opiates at the time of the offense, this only

heightens the risk of violence. Gov’t Mem. at 5, ECF No. 4; Order of Detention at 4.

Second, the Court agrees with Judge Harvey that the evidence against Cole is strong. In

an encounter captured on body-worn camera footage, officers recovered a loaded firearm from

Cole’s person. Order of Detention at 3. Cole allegedly told the officers that he had been holding

the firearm for someone. Criminal Compl. Statement of Facts at 1. And a criminal history check

revealed that he is a convicted felon and thus a prohibited person under § 922(g). Id.

Third, Cole’s history and characteristics also favor detention. As Judge Harvey

recognized, he does have some positive characteristics—ties to the D.C. community, family

support, prior employment, and youth. Order of Detention at 4. But of great concern is the

conviction for armed robbery. Id. That is a serious and inherently violent offense. More, Cole

committed the present federal offense while on supervision for the armed robbery conviction. Id.

This demonstrates a troubling pattern. Another worrying trend is his history of violating

conditions of supervision. Id. Indeed, just one month before his arrest in February, he admitted

6 to a violation of probation in his Maryland case. Id.; Pretrial Services Report at 4. Many of his

violations have involved testing positive for cocaine and opiates or failing to report for drug

testing. Order of Detention at 4; Pretrial Services Report at 4. 2 These concerning

characteristics—a violent criminal history, pervasive drug use, and failure to comply with

conditions of supervision—outweigh Cole’s positive characteristics.

Fourth, the Court believes that Cole poses a danger to the community, given the

circumstances of the charged offense and his characteristics. Judge Harvey summed it up best:

as “a convicted felon on supervision for a violent offense involving the use of a firearm,” Cole

“was under the influence of narcotics on the street in a residential area in possession of a

concealed, loaded, stolen firearm.” Order of Detention at 4. The Court has considered

alternatives short of detention and finds they are insufficient here.

The Court thus finds that the reasons justifying the February 19 detention order still

stand.

B.

Cole next argues that the COVID-19 pandemic is a new circumstance that warrants his

release, even if Judge Harvey’s detention order were appropriate. Def.’s Mot. at 17. Since the

February 19 hearing, the COVID-19 virus “has emerged as a global, national, and local health

emergency.” Id. at 2. More than 100 inmates in the custody of the D.C. Department of

Corrections (“DOC”) have tested positive, and one has died. Id.; Gov’t Opp’n at 16 & n.7.

Motions like Cole’s have been filed in dozens of cases in this District alone, with extensive

allegations about the dangers of the viral pandemic. The Government does not contest the

2 Like Judge Harvey, the Court is also concerned about other information that appears on page 4 of the Pretrial Services Report. Order of Detention at 4; Sealed Suppl. to Findings at 1.

7 virus’s threat. Gov’t Opp’n at 8. And, like other judges in this District and across the country,

the Court takes notice of the real and serious threat that the COVID-19 pandemic poses.

Cole insists that his continued detention at the D.C. Jail is “a violation of the Bail Reform

Act” because the pandemic poses a danger both to himself and the community. Def.’s Mot. at

16–17. This argument is unavailing.

Cole is 24 years old. Pretrial Services Report at 1. As the Government points out, he

does not claim to have any underlying health condition that makes him more susceptible to

contracting the virus or that would place him in a “high risk” category if he were infected. Gov’t

Opp’n at 8–9; see Pretrial Services Report at 2 (“Health Condition: None Reported”). This alone

distinguishes Cole’s case from most of the cases in which courts have ordered prisoners released

because of COVID-19.

Cole instead focuses on generalized allegations about conditions at the D.C. Jail. Def.’s

Mot. at 10–14, 17–18. He contends that the DOC has “proven to be ill-equipped to handle this

public health crisis.” Id. at 12. As the Government notes, however, the DOC has taken several

protective measures, including banning non-attorney visits, screening visitors and incoming

inmates, quarantining new inmates for 14 days, and more. Gov’t Opp’n at 11–13; see

Coronavirus Prevention, D.C. Dep’t of Corrections, https://doc.dc.gov/page/coronavirus-

prevention (last visited May 8, 2020).

The Court takes judicial notice of ongoing litigation over the conditions at DOC facilities.

Def.’s Mot. at 13. In that case, Judge Kollar-Kotelly recently granted a temporary restraining

order in favor of the challengers. See Banks v. Booth, No. 20-cv-849 (CKK),

,

at *1 (D.D.C. Apr. 19, 2020). She ordered the DOC to take additional measures to protect

inmates from the threat of COVID-19, including “immediate steps to provide . . . daily showers,

8 and clean clothing and clean linens to all inmates on isolation status,” as well as “appropriate and

consistent implementation of social distancing policies.”

. The DOC must also “ensure

that the triage process associated with sick call requests on the non-quarantine units is expedited

and reflects appropriate sensitivity to the wide variety of symptoms associated with COVID-19.”

. And when “inmates are transferred from the intake unit to a different unit before the

14-day quarantine period expires, [DOC must] ensure that appropriate housing, surveillance and

monitoring is afforded to the inmate in the receiving unit.”

.

The Court echoes Chief Judge Howell’s “confidence that the [DOC] . . . will do

everything it can to comply with that order so as to prevent the further spread of the virus to its

residents and staff.” United States v. Sagastume-Galicia, 20-cr-40 (BAH),

, at

*5 (D.D.C. Apr. 22, 2020). Judge Kollar-Kotelly’s order should ameliorate several concerns that

Cole raises about the unhygienic conditions at the D.C. Jail.

Cole also maintains that his continued detention threatens the community—“inmates,

correctional officers, and the communities of which those inmates and officers are a part.”

Def.’s Mot. at 18. The Court is unconvinced, and Cole fails to explain how he would pose less

of a risk to the community if released.

For one, “the risk of contracting COVID-19 pertains whether the defendant is released or

detained.” Minute Order, United States v. Oseguera Gonzalez, 20-cr-40 (BAH) (D.D.C. Mar.

24, 2020). In fact, if the risk of contracting the virus at the D.C. Jail is as high as Cole

suggests—and the Court does not necessarily accept his argument on this point—releasing him

now would potentially inject a carrier of the virus into the D.C. community at a time when the

region is reacting to an explosion of COVID-19 cases.

9 More, as Judge Ketanji Brown Jackson has observed, releasing a defendant into high-

supervision home detainment may pose “heightened safety risks . . . to the probation officers

who would be tasked with monitoring his behavior while he is out of jail on pretrial release.”

United States v. Lee, 19-cr-298,

, at *5 (D.D.C. Mar. 30, 2020). Indeed,

Pretrial Services and Probation are currently unable to conduct many of their normal in-person

community contacts and monitoring services. So there is a risk that Cole would actually pose a

greater threat to the community were he released at this point.

The COVID-19 pandemic thus does nothing to alter this Court’s analysis of the § 3142(g)

factors. There still exists “no condition or combination of conditions [that] will reasonably

assure . . . the safety of any other person and the community.”

(e)(1), (f).

Other judges in this District have reached the same conclusion in cases like Cole’s. For

example, Judge Cooper denied a defendant’s motion for release because “present conditions

(which include preventative measures by the [DOC]) do not support the release of individuals

whose detention is clearly mandated by application of the factors set forth in

(g)

based solely on a generalized risk to otherwise healthy detainees.” Minute Order, United States

v. Watkins, 20-cr-19 (D.D.C. Mar. 31, 2020). That defendant, like Cole, was charged with

possession of a loaded firearm, had prior felonies, and was arrested while on supervised release

for a prior conviction.

Judge Cooper determined that “no combination of conditions will

suffice to assure the public’s safety.”

So too here. The Court is mindful of the very real risks that contracting COVID-19 may

pose—whether Cole is detained or not. But ultimately, “any heightened risk posed by pretrial

detention does not alter the balance of the statutory factors Congress prescribed for determining

the propriety of detention, which continue to weigh heavily in favor of detention.” Minute

10 Order, Oseguera Gonzalez, 20-cr-40 (BAH) (D.D.C. Mar. 24, 2020). The Court thus rejects

Cole’s arguments for release under the Bail Reform Act.

C.

Finally, Cole urges that the Fifth and Eighth Amendments require his release. Def.’s

Mot. at 19–23. The Fifth Amendment protects against deprivation of life or liberty “without due

process of law.” U.S. Const. amend. V. The Eighth Amendment prohibits “cruel and unusual

punishments.”

amend. VIII. Neither Amendment provides a basis for Cole’s release.

To begin, the Eighth Amendment does not apply here, because Cole is a pretrial detainee.

The Eighth Amendment’s protections do not attach “until after conviction and sentence.”

Graham v. Connor,

, 392 n.6 (1989) (citing Ingraham v. Wright,

, 671

n.40 (1977)).

The applicable provision is the Fifth Amendment’s Due Process Clause. See Bell v.

Wolfish,

, 535 n.16 (1979) (“The Court of Appeals properly relied on the Due

Process Clause rather than the Eighth Amendment in considering the claims of pretrial

detainees.”). Due process forbids conditions of confinement that “amount to punishment of the

detainee.”

. A condition may amount to punishment if it “is not reasonably related to a

legitimate goal—if it is arbitrary or purposeless.”

. The Court’s analysis of this

question must not reflect its own “idea of how best to operate a detention facility.”

Due Process also requires jails to provide medical care to detainees who need it. City of

Revere v. Mass. Gen. Hosp.,

, 244–45 (1983). And “prison overcrowding may

violate the Constitution where it is so egregious that it endangers the safety of inmates.”

Brogsdale v. Barry,

(D.C. Cir. 1981).

11 Cole claims that the conditions at the D.C. jail amount to “punishment” and deprive him

of his “right to adequate medical care.” Def.’s Mot. at 19–21. But his generalized allegations do

not rise to the level of a due process violation. Recall that the DOC has taken several

preventative measures to combat the COVID-19 threat. See supra Section II.B. Faced with the

difficult task of shielding the community from harm while also protecting the inmate population,

the DOC certainly is not imposing “arbitrary or purposeless” conditions. Bell,

.

Inmates are receiving medical attention as required, and Cole does not allege that the D.C. Jail

has deprived him of any needed care. See City of Revere, 463 U.S. at 244–45.

In short, the DOC’s response has been far from “so egregious that it endangers the safety

of inmates.” Brogsdale,

; see also Lee, 19-cr-298 (KBJ),

, at

*5 (“[Defendant] has not alleged that prison authorities have been deliberately indifferent to this

threat, and he would be hard pressed to do so, given the aggressive precautions that DOC appears

to have undertaken to prevent the spread of COVID-19 within its facilities.”). And as noted,

Judge Kollar-Kotelly recently ordered the DOC to implement additional controls that address

many of Cole’s concerns. See supra Section II.B. Given the existing and anticipated controls,

Cole has not shown a due process violation. The Court agrees with other judges in this District

that have likewise recently rejected similar Fifth Amendment claims from DOC detainees. See,

e.g., United States v. Otunyo, 18-cr-251 (BAH),

, at *11–13 (D.D.C. Apr. 28,

2020); United States v. Riggins, 20-cr-10 (CKK),

, at *9 (D.D.C. Apr. 27,

2020).

12 III.

For all these reasons, it is hereby

ORDERED that the Defendant’s [13] Emergency Motion to Revoke Order of Detention

is DENIED. 3 2020.05.08 16:07:31 -04'00' Dated: May 8, 2020 TREVOR N. McFADDEN, U.S.D.J.

3 Cole does not request a hearing on his motion, and the Court finds one unnecessary here. See LCrR 47(f).

13