United States v. Cole

459 F.Supp.3d 116

UNITED STATES of America, Plaintiff,

v.Deon COLE, Defendant.

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

United States District Court, District of Columbia.

Signed May 8, 2020

Sara Guccini Vanore, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Plaintiff.

Tony W. Miles, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

TREVOR N. McFADDEN, U.S.D.J.

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, 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 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 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.

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 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,...