                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 UNITED STATES OF AMERICA
                v.                                         Criminal Action No. 18-198 (JEB)
 DARIN C. MOORE, JR., et al.,

          Defendants.


                                  MEMORANDUM OPINION

       Defendants Darin Moore, Gabriel Brown, James Taylor, and John Sweeney are charged

with, among other crimes, First-Degree Murder While Armed and Kidnapping Resulting in

Death. All four are detained in D.C. Department of Corrections facilities while awaiting trial. At

some point, the U.S. Attorney’s Office submitted a request to DOC that Defendants be separated.

DOC, consequently, appears to have transferred two Defendants (Taylor and Sweeney) to the

Correctional Treatment Facility (CTF), while the other two (Moore and Brown) have remained at

the D.C. Jail. Certain restrictions have been imposed within those facilities to keep the pairs of

Defendants apart. Moore now moves to vacate the separation order, claiming that it

unconstitutionally restricts his movements within the Jail. Disagreeing, the Court will deny the

Motion.

I.     Background

       The Government alleges that on June 19–20, 2018, Defendants kidnapped Andre Carlos

Simmons, Jr., held him for ransom, and then killed him. See ECF No. 41 (Superseding

Indictment) at 2–6. It thus arrested Moore on June 20, Brown on June 27, and Taylor on August

20. See ECF Nos. 1, 10, 21. Sweeney was not arrested until January 24, 2019, after a

superseding indictment charged him with the same crimes. See ECF Nos. 30, 33. On March 7,


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the prosecution brought another superseding indictment, this time charging Defendants with

Kidnapping Resulting in Death — an offense that could have made them eligible for the death

penalty — and First-Degree Murder. See Superseding Indictment at 2–6. The case has been

largely on hold the past several months while the Department of Justice considered whether to

seek the death penalty. On June 13, 2019, this process wrapped up, and the Government

informed the Court that it would not pursue the death penalty against any Defendant. See ECF

No. 58.

          In the intervening months, however, a number of issues have arisen related to the

circumstances of Defendants’ detention. As mentioned, all four have been held pending trial.

See ECF No. 5 (Moore Detention Mem.); Minute Entry of 8/3/2018; ECF No. 24 (Taylor

Detention Mem.); Minute Entry of 1/24/2019. The U.S. Attorney’s Office acknowledges that,

from the time of their arrests, it has asked DOC to keep them separated. See ECF No. 54 (Opp.

to Mot. to Vacate) at 2. Defendants say that Moore, Taylor, and Brown were nevertheless housed

together in general population at the D.C. Jail from August 2018 until January 2019. See ECF

No. 44 (Taylor Mot. to Vacate) at 2; ECF No. 52 (Moore Mot. to Vacate) at 1. On January 17,

2019, DOC transferred Taylor to CTF. When Sweeney was arrested one week later, he was also

placed there. See Moore Mot. at 1. At subsequent status conferences, counsel for Taylor and

Sweeney informed the Court that their clients had been placed in protective custody —

effectively, solitary confinement — because CTF was not a maximum-security facility and could

not otherwise detain them. See Taylor Mot. at 2–4, 7. Back at the D.C. Jail, Moore and Brown

were housed on separate floors and kept apart. See Moore Mot. at 3.

          Faced with concerns about Taylor’s and Sweeney’s form of detention, the Court directed

their counsel to work with the prosecution and DOC to see if these issues could be resolved




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without judicial intervention. Finding no success on that front, Taylor thereafter filed a motion to

vacate the separation order, as he believed that order had led him to be placed in protective

custody while at CTF. See Taylor Mot. at 5–7. The Government did not oppose the Motion,

which the Court granted. See ECF No. 51 (Order on Taylor Mot.). It is unclear how Taylor and

Sweeney have been housed since the Court’s order, but they presumably are no longer in

isolation at CTF.

       Moore has now filed a similar Motion. Unlike Taylor, however, he is not in protective

custody. Instead, Moore complains that the separation order prevents him from moving around

the Jail while Brown is moving, which inhibits his access to the law library and complicates his

ability to meet with counsel. See Moore Mot. at 2. This time, the Government has filed an

Opposition, arguing that the separation order is justified by both the prosecution’s concerns

about collusion among Defendants and the security of witnesses and that it imposes little burden

on the conditions of Moore’s pretrial detention. See Opp. at 2.

II.    Legal Principles

       In his Motion, Moore posits that the separation order and concomitant restrictions on his

movement at the Jail violate his due-process rights. See Moore Mot. at 3 (citing Bell v. Wolfish,

441 U.S. 520, 539 (1979)). “[W]here it is alleged that a pretrial detainee has been deprived of

liberty without due process, the dispositive inquiry is whether the challenged condition, practice,

or policy constitutes punishment.” Block v. Rutherford, 468 U.S. 576, 583 (1984). The Court’s

task in applying this standard is to determine “whether the disability is imposed for the purpose

of punishment or whether it is but an incident of some other legitimate governmental purpose.”

Bell, 441 U.S. at 538. Government restrictions taken with an “expressed intent to punish”

clearly constitute punishment. Id. So do actions that, while not taken with such intent, “are not




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‘rationally related to a legitimate nonpunitive government purpose’ or . . . ‘appear excessive in

relation to that purpose.’” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (quoting Bell,

441 U.S. at 561). A pretrial detainee thus can prevail if she either introduces evidence of a

subjective intent to punish or demonstrates that a restriction is objectively unreasonable or

excessive relative to the Government’s proffered justification. Id. at 2473–74.

       The due-process protections just discussed derive from the substantive branch of the Due

Process Clause. See Block, 468 U.S. at 593–94 (Blackmun, J., concurring). Since pretrial

detainees “retain at least those constitutional rights . . . enjoyed by convicted prisoners,” Bell,

441 U.S. at 545, however, they maintain other constitutional protections as well. The procedural

component of the Due Process Clause, for one, prevents the Government from taking actions that

“impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of

prison life” absent certain procedural protections — viz., “notice and an adequate opportunity to

be heard.” Wilkinson v. Austin, 545 U.S. 209, 218, 223 (2005) (citation omitted); see also

Williamson v. Stirling, 912 F.3d 154, 181 & n.20 (4th Cir. 2018). In addition, the Eighth

Amendment’s prohibition on cruel and unusual punishment — while not applicable on its terms

to pretrial detainees — establishes a separate constitutional floor. See City of Revere v. Mass.

Gen. Hosp., 463 U.S. 239, 244 (1983). The Government flouts this guarantee if it imposes

conditions of confinement that create “a sufficiently substantial ‘risk of serious damage to [the

inmate’s] future health’” and acts with “knowing disregard” of such risk. See Chandler v. D.C.

Dep’t of Corrections, 145 F.3d 1355 (D.C. Cir. 1998) (citation omitted). Since Moore does not

invoke these other protections, no more needs to be said about them here.




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III.   Analysis

       Moore does argue that the separation order violates substantive due process, and that is

because it is unsupported by any legitimate governmental objective and thus could only have

been implemented for the purpose of punishment. See Moore Mot. at 3–4. In response, the

Government asserts that separation is warranted in this case “to prevent the defendants from

engaging in further collective action that might put people in danger, including coordinating

efforts to obstruct justice such as through attempts to intimidate witnesses and falsely coordinate

defenses.” Opp. at 2. The Court’s inquiry, discussed above, can be broken into two steps. The

first addresses whether the restriction is supported by a “legitimate nonpunitive governmental

purpose.” Bell, 441 U.S. at 561. The Court believes that it is. In a multiple-defendant homicide

case, the prosecution’s concerns about improper collusion are neither irrational nor illegitimate.

It is not clear that Moore disagrees. Rather than challenge the legitimacy writ large of such

concerns, he contends that they lack evidentiary foundation in this case. See Moore Mot. at 3–4.

But this argument goes to the next step of the analysis, at which the Court will consider whether

the asserted governmental objective actually justifies the restriction being challenged.

       Turning to that issue, the Court must decide whether the restriction is not “reasonably

related” or is “excessive in relation” to that purpose. See Bell, 441 U.S. at 538–39. Moore

argues that this is so because there is no evidentiary basis supporting the prosecution’s only

proffered justifications. This argument, while perhaps persuasive in the context of more

substantial restrictions on confinement, does not carry the day here. When deciding whether a

restriction is not reasonably related to — or is excessive relative to — the Government’s

justification, the Court must consider the strength of that justification in the context of the case

and then weigh that consideration against the harshness of the restriction. See Block, 468 U.S. at




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585–87. In challenging the evidentiary foundation of the prosecution’s concerns, Moore disputes

the strength of the governmental interest at the first of these steps. So far, he is on solid ground,

as the Court shares some his qualms on this issue. Up to this point, the prosecution has

submitted very little information regarding potential risks of collusion or harm to witnesses. The

best it comes up with are equivocal allegations that friends or family members of certain

Defendants — but not Moore — had a verbal altercation outside the courtroom that “may be

connected” to a stabbing that took place later that day. See Opp. at 2–3. Further undercutting

the seriousness of the Government’s concerns is the fact that three Defendants were apparently

housed together in general population at the Jail for more than four months. See Moore Mot. at

1.

       Where Moore loses his footing, however, is at the subsequent weighing step. He appears

to suggest that the absence of much evidence supporting the Government’s justification

necessarily invalidates the restrictions on his movement, no matter how minor. Id. at 3. That is

not the case. The proper inquiry weighs the harshness of the restriction against the magnitude of

the prosecution’s concerns, even if such concerns are only weakly present. See Block, 468 U.S.

at 585–87. Applying that standard here, the Court finds that the more general concerns attending

cases like this one — i.e., a four-co-defendant homicide — combined with the facts (though

scant) the prosecution offers about possible violence to witnesses and unlawful collusion, are

enough to support the minimal restrictions on Moore’s confinement. Indeed, as of now, the

actual restrictions Moore alleges — viz., the brief limits on his movement while Brown moves

around the Jail — more closely resemble inconveniences than impingements on liberty. See

Bell, 441 U.S. at 538–39; see also id. at 539 n.21 (“There is, of course, a de minimis level of

imposition with which the Constitution is not concerned.”) (citation omitted). The Court thus




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finds that, at least where separation imposes little burden on a defendant’s confinement, it is not

excessive for the Government to request it under the circumstances presented here.

       The principal decision Moore relies on in his Motion aptly illustrates why the

circumstances here fall short of a violation of his substantive-due-process rights. In United

States v. Basciano, 369 F. Supp. 2d 344 (E.D.N.Y. 2005), the court concluded that the

prosecution’s concern about the defendant’s planning crimes from prison was legitimate, but that

“the government’s chosen means — [] indefinite and solitary confinement” were not “reasonably

related” to that goal in the absence of further evidence that such planning would occur. Id. at

351. Put another way, it felt that the imposition of solitary confinement was excessive relative to

the Government’s legitimate concerns, given the lack of evidence substantiating them. Id. The

court grounded its decision in the “exceptionally harsh” nature of such confinement, which it

understandably felt “must be reserved for the most extreme cases.” Id.

       The conditions here, conversely, fall at the other end of the spectrum. As mentioned,

Moore is held in general population. His complaints boil down to the inconvenience of having

“to hold his location until the other party is finished moving.” Moore Mot. at 2. While he

mentions the possibility that such restrictions could inhibit his “ability to access the law library”

and his “ability to consult with counsel,” id., he does not allege facts suggesting that they have

meaningfully interfered with either. The weighing of considerations thus comes out differently

from Basciano. Where the restriction imposed is harsher, the Government may be required — as

in that case — to “show some intent on behalf of Mr. Moore and his co-defendants to engage” in

unlawful collusion or at least offer evidence that such collusion is reasonably probable. Id. at 3.

But Moore is incorrect to insist on such evidence to justify the minimal restrictions imposed on

him at this point.




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       In sum, under the circumstances presented, the Court finds that the separation order and

associated restrictions on Moore’s movement are reasonably related to and not otherwise

excessive relative to the Government’s concerns. Moore has thus failed to make out a

substantive-due-process violation.

IV.    Conclusion

       For the foregoing reasons, the Court will deny Moore’s Motion to Vacate the Separation

Order. A separate Order so stating will issue this day.

                                                           /s/ James E. Boasberg
                                                           JAMES E. BOASBERG
                                                           United States District Judge
Date: June 21, 2019




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