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 18 U.S.C. § 922(g)(1). Indictment
at 1.
At the hearing on February 19, Magistrate Judge Harvey ordered Cole detained pending
trial. Based on the factors in 18 U.S.C. § 3142(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. Id. 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
18 U.S.C. §§ 3142 and 3145. Id. “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.” 18 U.S.C. § 3145(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.” Id. § 3142(f); see United
States v. Peralta, 849 F.2d 625, 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, 240 F. Supp. 3d 128, 132 (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. Id. at 23–24.
The standards governing pretrial detention are in 18 U.S.C. § 3142. 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.” 18 U.S.C. § 3142(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.” Id. § 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), 2020 WL 1914896,
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.” Id. at *14. 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.”
Id. at *13. 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.” Id. at *14.
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), 2020 WL 1935555, 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, 2020 WL 1541049, 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.” 18 U.S.C. § 3142(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 18 U.S.C. § 3142(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. Id. Judge Cooper determined that “no combination of conditions will
suffice to assure the public’s safety.” Id.
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.” Id. 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, 490 U.S. 386, 392 n.6 (1989) (citing Ingraham v. Wright, 430 U.S. 651, 671
n.40 (1977)).
The applicable provision is the Fifth Amendment’s Due Process Clause. See Bell v.
Wolfish, 441 U.S. 520, 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.” Id. at 535. A condition may amount to punishment if it “is not reasonably related to a
legitimate goal—if it is arbitrary or purposeless.” Id. at 539. The Court’s analysis of this
question must not reflect its own “idea of how best to operate a detention facility.” Id.
Due Process also requires jails to provide medical care to detainees who need it. City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 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, 926 F.2d 1184, 1188 (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, 441 U.S. at 539.
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, 926 F.2d at 1188; see also Lee, 19-cr-298 (KBJ), 2020 WL 1541049, 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), 2020 WL 2065041, at *11–13 (D.D.C. Apr. 28,
2020); United States v. Riggins, 20-cr-10 (CKK), 2020 WL 1984263, 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).