Opinion
Case No.: 5:19-cr-39-TKW
2019-08-09
UNITED STATES of America v. Clark DOWNS
Michelle Kathleen Daffin, Northern District of Florida, Panama City, FL, for United States of America.
Michelle Kathleen Daffin, Northern District of Florida, Panama City, FL, for United States of America.
ORDER OF DETENTION PENDING TRIAL
Michael J. Frank, United States Magistrate Judge
On August 8, 2019, this court conducted a detention hearing pursuant to the Bail Reform Act of 1984, as amended, 18 U.S.C. § 3141, et seq. Based upon the information contained in the Pretrial Services report, the evidence presented at the hearing, the statutory presumption of dangerousness, the description of the child pornography submitted by the government, and the arguments of counsel, this court finds that the Defendant must be detained pending trial because no condition or combination of conditions reasonably will assure the safety of two victims and other members of the community.
Part I —Eligibility for Detention
To safeguard members of the community, defendants charged with criminal offenses "legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence ...." Bell v. Wolfish , 441 U.S. 520, 523, 99 S. Ct. 1861, 1865, 60 L.Ed.2d 447 (1979) ; see 18 U.S.C. § 3142(a). To detain a defendant prior to trial, however, "the Government must comply with constitutional requirements ... and any applicable statutory provisions." Bell , 441 U.S. at 534 n.15, 99 S. Ct. at 1871 n.15.
In this case, under the Bail Reform Act of 1984, as amended, the Defendant is eligible for detention because he has been charged by a grand jury with a crime of violence. See 18 U.S.C. § 3142(f)(1)(A) (authorizing detention of defendants charged with crimes of violence); 18 U.S.C. § 3156(a) (defining the term "crime of violence" to include "any felony" under chapter 110). Specifically, he has been charged with Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) & (c), and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b) & (b)(2). These offenses are found within chapter 110 of Title 18.
Part II —Standard
"The Bail Reform Act of 1984 provides a federal court with two choices when dealing with a criminal defendant who has been ‘charged with an offense’ and is awaiting trial ...." Reno v. Koray , 515 U.S. 50, 57, 115 S. Ct. 2021, 2025, 132 L.Ed.2d 46 (1995). A court may either release a defendant on appropriate conditions or detain the defendant. Id. In determining whether detention is appropriate, courts must keep in mind that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno , 481 U.S. 739, 755, 107 S. Ct. 2095, 2105, 95 L.Ed.2d 697 (1987). The policy of the Bail Reform Act of 1984 "is to permit release under the least restrictive condition compatible with assuring the future appearance of the defendant" and the safety of the community. United States v. Price , 773 F.2d 1526, 1528 (11th Cir. 1985) (per curiam).
"A criminal defendant must be released before trial on personal recognizance or upon execution of an unsecured bond, unless the court determines that release will not reasonably ensure his appearance or will endanger the safety of others." Taylor v. Pekerol , 760 F. App'x 647, 653 (11th Cir. 2019) (citing 18 U.S.C. § 3142(b) ). On the other hand, a defendant must be detained pending trial if he presents a serious risk of flight or poses a danger to another person or members of the community. Salerno , 481 U.S. at 749, 107 S. Ct. at 2102 ; see United States v. Montalvo-Murillo , 495 U.S. 711, 717, 110 S. Ct. 2072, 2077, 109 L.Ed.2d 720 (1990) (noting that the Bail Reform Act "directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight"). Before detaining a defendant pending trial, however, the Government must establish by a preponderance of the evidence that a defendant poses a serious risk of flight, or show by clear and convincing evidence that he is a danger to another person or the community. See Salerno , 481 U.S. at 750, 107 S. Ct. at 2103 ; United States v. Quartermaine , 913 F.2d 910, 917 (11th Cir. 1990) ; United States v. King , 849 F.2d 485, 488-89 (11th Cir. 1988) ; United States v. Medina , 775 F.2d 1398, 1402 (11th Cir. 1985).
It is important to note that the term "danger to the community" was "not meant to refer only to the risk of physical violence." United States v. Tortora , 922 F.2d 880, 884 (1st Cir. 1990). Safety of the community under § 3142(e) is not limited to the danger of physical violence, but "refers to the danger that the defendant might engage in criminal activity to the detriment of the community." United States v. Cook , 880 F.2d 1158, 1161 (10th Cir. 1989) ; United States v. Abdullahu , 488 F. Supp.2d 433, 438-39 (D. N.J. 2007) (noting that "danger to the community does not only include physical harm or violent behavior"); United States v. Gibson , 481 F. Supp.2d 419, 423 (W.D. Pa. 2007) (noting that "violence is not the only danger to the community this court must consider").
Clear and convincing evidence of dangerousness exists when the evidence induces "an abiding conviction that the truth of its factual contentions are ‘highly probable.’ " Colorado v. New Mexico , 467 U.S. 310, 316, 104 S. Ct. 2433, 2437-38, 81 L.Ed.2d 247 (1984). "Clear and convincing evidence" entails more than a preponderance of the evidence, but less than evidence establishing a fact beyond a reasonable doubt. Addington v. Texas , 441 U.S. 418, 423-25, 99 S. Ct. 1804, 1808-09, 60 L.Ed.2d 323 (1979). Accordingly, to show by clear and convincing evidence that a defendant poses a danger to the community, the United States need not prove that there is a 100% chance that the defendant will commit harmful acts. Rather, the concept of danger entails probability of harm and, thus, demonstrating a substantial risk of harm is sufficient. United States v. Shea , 749 F. Supp. 1162, 1167 (D. Mass. 1990) ("The term ‘danger’ invokes a concept of probability (commonly referred to as risk of harm) rather than certainty of harm.").
As discussed above, if the government satisfies its burden of demonstrating dangerousness, the Bail Reform Act requires the detention of a defendant. Montalvo-Murillo , 495 U.S. at 717, 110 S. Ct. at 2077 ("The Act ... requires pretrial detention of certain persons charged with federal crimes and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight."); United States v. Smith , 79 F.3d 1208, 1209 (D.C. Cir. 1996) ("The Bail Reform Act requires that a defendant be detained prior to trial if there is clear and convincing evidence that no conditions placed upon his release would reasonably assure the safety of the community."). A defendant may be detained based either on the risk of nonappearance or his dangerousness; the government is not required to establish both. United States v. King , 849 F.2d 485, 488-89 (11th Cir. 1988).
Part III —The Presumption of Danger to the Community
Because the grand jury charged the Defendant with Production of Child Pornography, in violation of 18 U.S.C. §§ 2251(a) & (c), and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b) & (b)(2), there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of the community. See 18 U.S.C. § 3142(e)(3)(E) ; United States v. Bess , 678 F. Supp. 929, 934 (D.D.C. 1988) (explaining that the presumption "represents Congress's general factual view about ... the special risks of danger to the community presented by defendants who commit the crimes to which it attaches"). In "order to trigger section 3142(e)'s rebuttable presumption, the government need not make a showing of probable cause independent of the grand jury's indictment." King , 849 F.2d at 487-88 ; United States v. Vargas , 804 F.2d 157, 163 (1st Cir. 1986) ; United States v. Hurtado , 779 F.2d 1467, 1479 (11th Cir. 1985).
In light of the statutory presumption, the Defendant bears the burden of producing evidence to rebut the presumption. See United States v. Stricklin , 932 F.2d 1353, 1354 (10th Cir. 1991) (per curiam). "Once the presumption arises, the ball is in the defendant's court, ... and it is incumbent on the defendant to come forward with some evidence to rebut the presumption." Cook , 880 F.2d at 1162 ; see Quartermaine , 913 F.2d at 916 ("Once the statutory presumptions are raised, the defendant carries the burden of production to come forward with evidence to rebut the presumptions."). Specifically, a defendant has the burden of producing evidence demonstrating that he is not a danger to the community. Quartermaine , 913 F.2d at 916 ; Hurtado , 779 F.2d at 1479. "In a presumption case such as this, a defendant bears a limited burden of production—not a burden of persuasion—to rebut that presumption by coming forward with evidence he does not pose a danger to the community ...." United States v. Abad , 350 F.3d 793, 797 (8th Cir. 2003) (quoting United States v. Mercedes , 254 F.3d 433, 436 (2d Cir. 2001) ); United States v. Dominguez , 783 F.2d 702, 707 (7th Cir. 1986) (noting that the burden remains with the government to persuade the court that the defendant is a danger). The defendant's burden of production, therefore, is relatively light. United States v. Chagra , 850 F. Supp. 354, 357 (W.D. Pa. 1994).
"Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain." Stricklin , 932 F.2d at 1355 ; Quartermaine , 913 F.2d at 916 ; King , 849 F.2d at 488. "The presumption remains as a factor because it is not simply an evidentiary tool designed for the courts. Instead, the presumption reflects Congress's substantive judgment that particular classes of offenders should ordinarily be detained prior to trial." United States v. Stone , 608 F.3d 939, 945 (6th Cir. 2010) ; Dominguez , 783 F.2d at 707 (noting that the presumption of dangerousness "represents Congressional findings that certain offenders ... are likely to continue to engage in criminal conduct undeterred either by the pendency of charges against them or by the imposition of monetary bond or other release conditions"). Nevertheless, "the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government." Stricklin , 932 F.2d at 1354-55 ; Quartermaine , 913 F.2d at 916 ("The defendant's obligation to come forward with evidence does not shift to the defendant the government's burden of persuasion."); King , 849 F.2d at 488 (noting that the "statutory presumption imposes only the burden of production" on the defendant "and does not shift the burden of persuasion concerning risk of flight and dangerousness").
In determining whether there are conditions of release that reasonably might assure the safety of other persons and the community, courts must consider:
(1) "the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ... or involves a minor victim ...";
(2) "the weight of the evidence against the person";
(3) "the history and characteristics of the person," including "the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings"; and
(4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g).
Part IV —Findings of Fact and Statement of Reasons for Detention
The following factors support the presumption and this court's finding that no condition or combination of conditions would reasonably assure the safety of two victims and other members of the community:
A. NATURE AND CIRCUMSTANCES OF THE OFFENSES CHARGED
On July 9, 2019, a federal grand jury charged the Defendant with Production of Child Pornography and Possession of Child Pornography. According to the government, in 2014, the Defendant sexually abused a 15-year-old victim and took still images and a video recording of some of the abuse—including digital penetration of the victim—and of the genitalia of the victim. When interviewed by the government, the 15-year-old victim confirmed that the Defendant digitally penetrated her and recorded some of this sexual abuse on his cellular telephone. The "nature of the crime charged—sexual activity with a minor—weighs heavily against release." Abad , 350 F.3d at 798.
Throughout this order, this court will refer to the primary victim as the "15-year-old victim," with the understanding that this victim was 15 years old in 2014.
The government also alleged that a search of two Dell computers belonging to the Defendant revealed electronic photographs and videos consistent with the victim's narrative. In addition to possessing pornographic images and videos of the 15-year-old victim—on two separate computers—the government also found child pornography that depicted victims between the ages of 8 and 16 years engaged in or submitting to sex acts. According to the government, this includes six videos and one image.
B. THE WEIGHT OF THE EVIDENCE AGAINST THE DEFENDANT
This court also must consider the weight of the evidence against the Defendant. See 18 U.S.C. § 3142(g)(2). Some courts have stated that this factor pertains only to "the weight of the evidence of dangerousness" and "not the weight of the evidence of the defendant's guilt," but these concepts often will be related. Stone , 608 F.3d at 948. Furthermore, substantial evidence of guilty may provide a defendant with greater incentive to harm or intimidate victims and witnesses, which necessarily entails a danger to such victims and witnesses.
Based on the government's proffer, it appears that the weight of the evidence is substantial. This evidence includes statements of the 15-year-old victim that the Defendant sexually abused her and recorded this abuse on a cellular telephone. The victim's account is corroborated by the fact that the government found videos and images of the victim—including videos of the victim unclothed and being sexually abused—on two computers belonging to the Defendant. The government also allegedly found on the Defendant's computers other images of child pornography.
In addition, the government stated that it discovered text messages sent by the Defendant to the 15-year-old victim's sister, who was 14 years old at the time the Defendant communicated with her in January 2017. In these text messages, the Defendant commented that the 14-year-old girl had a "nice butt," and that she was "looking so hot." Even more damning was the message, purportedly from the Defendant, that he "would probably end up in jail" if he did what he wanted with the 14-year-old, and that "the thought of it excites me." These text messages—along with the child pornography found on his computer—further indicate that the Defendant has a sexual interest in teenage girls. They also suggest that the Defendant was grooming this 14-year-old victim for sexual activity and was preparing to prey upon her. Thus, the weight of the evidence indicating that the Defendant poses a danger to children is substantial.
" ‘Child sexual abuse is often effectuated following a period of "grooming" and the sexualization of the relationship.’ " United States v. Gladish , 536 F.3d 646, 648 (7th Cir. 2008) (quoting Sana Loue, Legal and Epidemiological Aspects of Child Maltreatment , 19 J. Legal Med. 471, 479 (1998) ). The "ultimate goal of grooming is the formation of an emotional connection with the child and a reduction of the child's inhibitions in order to prepare the child for sexual activity.’ " United States v. Engle , 676 F.3d 405, 412 (4th Cir. 2012) (quoting United States v. Chambers , 642 F.3d 588, 593 (7th Cir. 2011) ).
C. THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT
The history and characteristics of the Defendant include the fact that he served in the Air Force from 1969 to 1973, and he served as correctional officer for approximately sixteen years. The fact that the Defendant has no criminal history also is highly relevant and is a factor supporting release pending trial. Various courts have recognized, however, that sexual abuse of children often goes unreported. See United States v. Pugh , 515 F.3d 1179, 1201 (11th Cir. 2008) ; Doe v. United States , 976 F.2d 1071, 1074 (7th Cir. 1992) ; United States v. Crisman , 39 F. Supp.3d 1189, 1246 (D. N.M. 2014). This court also must consider the fact that "sex offenders tend to recidivate at a higher-than-normal rate." United States v. Jones , 798 F.3d 613, 620 (7th Cir. 2015) ; see McKune v. Lile , 536 U.S. 24, 33, 122 S. Ct. 2017, 2024, 153 L.Ed.2d 47 (2002) (citing relevant studies indicating that "the rate of recidivism of untreated offenders has been estimated to be as high as 80%"); Pugh , 515 F.3d at 1201 (noting that "child sex offenders have appalling rates of recidivism"). That rate of recidivism ties into the next factor this court must consider: the nature and magnitude of the danger that releasing the Defendant would pose.
D. THE NATURE AND SERIOUSNESS OF THE DANGER POSED BY RELEASE
In considering the nature and seriousness of the danger posed by releasing a defendant, courts must keep in mind that dangerousness "is a function of the magnitude of the harm that will occur if danger materializes and the probability that it will materialize." United States v. Boyd , 475 F.3d 875, 877-78 (7th Cir. 2007). Put another way "[a]dequate protection is a function of two variables: the level of risk that conduct will occur and the level of harm that will be inflicted if that conduct does occur." United States v. Irey , 612 F.3d 1160, 1217 (11th Cir. 2010) (en banc).
Here, release of the Defendant poses a serious risk of danger to members of the community, including the 15-year-old victim, her younger sister, and other children. As to the gravity of the harm posed, an offense relating to child pornography "is, without qualification, a serious crime." United States v. Robinson , 669 F.3d 767, 776 (6th Cir. 2012). "Child sex crimes are among the most egregious and despicable of societal and criminal offenses." United States v. Sarras , 575 F.3d 1191, 1220 (11th Cir. 2009). The production of child pornography constitutes sexual abuse of a child, and the harm caused by the sexual abuse of children is substantial and long-lasting. United States v. Mozie , 752 F.3d 1271, 1289 (11th Cir. 2014) ("Sexual crimes against minors cause substantial and long-lasting harm ...."); United States v. MacEwan , 445 F.3d 237, 249-50 (3d Cir. 2006) (noting that "child pornography is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved"). The sexual abuse of minors "leaves indelible memories" from which a "victim will likely continue to suffer throughout her life ...." United States v. Taylor , 736 F. App'x 216, 222 (11th Cir. 2018).
Furthermore, in "cases involving sexual crimes against children, courts have repeatedly recognized a substantial risk that physical force will be used to ensure compliance." Chery v. Ashcroft , 347 F.3d 404, 409 (2d Cir. 2003). "A child has very few, if any, resources to deter the use of physical force by an adult intent on touching the child. In such circumstances, there is a significant likelihood that physical force may be used to perpetrate the crime." United States v. Velazquez-Overa , 100 F.3d 418, 422 (5th Cir. 1996). In light of the probability of harm being inflicted and the magnitude of the likely harm, society has a "strong interest in preventing the sexual exploitation of children." United States v. Stokes , 726 F.3d 880, 893 (7th Cir. 2013) ; New York v. Ferber , 458 U.S. 747, 757, 763, 102 S. Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982) (noting that the "prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance"); United States v. Cobler , 748 F.3d 570, 580 (4th Cir. 2014) (same).
This court also must take into consideration the fact that children are extremely vulnerable to sexual abuse. Thompson v. Barr , 922 F.3d 528, 533 (4th Cir. 2019) ("Sexual abuse of children always involves preying on the vulnerable ...."); United States v. Hughes , 632 F.3d 956, 962 (6th Cir. 2011) (noting the special vulnerabilities of children). "Children in particular—because of their naiveté, their dependence on adults, and their inability to understand, flee, or resist such advances—are vulnerable to adults who seek to take advantage of them sexually." Nicanor-Romero v. Mukasey , 523 F.3d 992, 1013 (9th Cir. 2008) (Bybee, J., dissenting).
Additionally, this court notes that the testimony of the 15-year-old victim and her younger sister could be extremely important to the government should this case proceed to trial. There is a substantial danger that the Defendant might attempt to threaten or harm these victims in an effort to prevent them from testifying. As at least one Supreme Court Justice has recognized, the danger that an adverse witness will be attacked "exists in every adversary proceeding" and a released defendant may present a "threat to the witness hostile to his interests ...." Wolff v. McDonnell , 418 U.S. 539, 600, 94 S. Ct. 2963, 2996, 41 L.Ed.2d 935 (1974) (Douglas, J., dissenting in part and concurring in the judgment in part). In light of the substantial penalty that the Defendant faces—essentially a life sentence insofar as he is 70 years old and he faces a mandatory minimum term of fifteen years of imprisonment—he has a strong incentive to dissuade these victims from testifying against him.
Based on the summary of the evidence adduced by the government, the statutory factors this court must consider, the presumption under 18 U.S.C. § 3142(e)(2)(E) that the Defendant poses a danger to other persons, and the findings of fact set forth above, this court finds that no condition or combination of conditions reasonably will assure the safety of two of the victims and the community. There is clear and convincing evidence which demonstrates that the Defendant poses a danger to another person—including two of the victims and other children—and the community. In this case, "the protection of the community can be assured only by continued detention." United States v. Millan , 4 F.3d 1038, 1049 (2d Cir. 1993). Accordingly, the Defendant shall be detained pending trial.
Because this court is ordering the Defendant's detention, its findings and analysis focused on the factors that warrant detention. As in every case, some factors weighed in favor of releasing the Defendant. This court considered these factors and other factors not specifically discussed in this order. This court also took into consideration the Defendant's testimony and the testimony of his brother, daughter, and two friends/former co-workers who testified on the Defendant's behalf.
Part V —Directions Regarding Detention
The Defendant is committed to the custody of the Attorney General or his designated representative for confinement in a correctional facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The Defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the government, the person in charge of the correctional facility shall deliver the Defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
SO ORDERED , this 9th day of August, 2019.