Opinion
Case No: M-2-07-290, Case No: CR2-08-106.
May 16, 2008
OPINION AND ORDER
This matter came on for consideration upon Government's Motion for Review and Revocation of Release Order (Doc. # 17) and the Response of Defendant to Government Motion for Review and Revocation of Release Order (Doc. # 21). For the reasons that follow, the Court GRANTS the Government's motion.
I. Background
On July 11, 2007, Defendant Jonathan E. Brown was charged in a criminal complaint in the Southern District of Ohio with shipping, receiving and possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(1), 2252A(a)(1), 2252(a)(2), 2252A(a)(2), 2252(a)(4)(B), and 2252A(a)(5)(B). Brown came to the attention of law enforcement when crossing into Canada in June 2007. At that time, Canadian customs officials searched his car and found child pornography. He was tried and convicted for that crime and served a prison sentence in Canada. Since his release from Canadian prison Brown has been in federal custody on the charges which were filed in this case.
After Brown served his jail term in Canada he was taken into custody in the Eastern District of Michigan on April 1, 2008. The pretrial services officer in that district recommended that Brown be detained without bond. Brown waived his detention hearing and agreed to be transported to the Southern District of Ohio.
On April 25, 2008, Brown waived his right to a preliminary hearing. (Doc. # 11.) Also on that date, United States Magistrate Judge Terence P. Kemp conducted a detention hearing at which Brown requested to be released on bond. On May 1, 2008, Judge Kemp issued a written order that directed Brown be released with certain conditions:
The Columbus Pretrial Services office has recommended his release on strict conditions, including three conditions required by the Adam Walsh Child Protection and Safety Act — that he be supervised by a federal Pretrial Services officer, that he participate in an electronic monitoring program, and that he have no contact with any victims or witnesses in the case.
(Doc. # 12 at 4.)
On May 2, 2008, the Government filed a Motion for Stay of Execution of the Release Order (Doc. # 15) that requested a stay of the May 1, 2008 order until this Court could review it. On that same day, Magistrate Judge Kemp granted the Government's motion and issued a stay of the release order until the close of business May 5, 2008. (Doc. # 16.)
On May 5, 2008, the Government filed the Government's Motion for Review and Revocation of Release Order (Doc. # 17), in which it asked for review of Magistrate Judge Kemp's order pursuant to 18 U.S.C. 3145(a)(1) and requested a stay until this Court reviewed the order. On that same day, this Court issued an order granting the Government's motion in part. Specifically, the Court ordered Brown to remain in custody pending an oral hearing that was scheduled for May 12, 2008. Brown filed his memorandum in opposition to the Government's motion on May 9, 2008. (Doc. # 21.)
On May 12, 2008, this Court held a hearing on the Government's Motion for Review and Revocation of Release Order. During that hearing, the Government called Special Agent Cameron Bryant, Immigration and Customs Enforcement Agency as a witness and submitted evidence, including photographs of young boys in sexual bondage, that had not been proffered at the hearing before Magistrate Judge Kemp. Also, the Court was presented information related to Brown's trial and conviction in Canada that had not been presented to Judge Kemp.
II. Legal Standard
Magistrate Judge Kemp correctly set forth the standard that controls whether a defendant may be held without bond in a case such as this one:
If probable cause exists to believe that defendant committed an offense listed under section 2252(a)(1), then a rebuttable presumption exists that no condition or combination of conditions will reasonably assure the safety of any other person and the appearance of the person as required. 18 U.S.C. § 3142(e). [footnote omitted]. Once the rebuttable presumption is established, the burden is then placed on the defendant to produce countervailing evidence that forms a basis for his contention that he will appear and will not pose a threat to the community. United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986). If the defendant meets this burden of production, the burden shifts back to the government to prove a risk of flight by a preponderance of the evidence or dangerousness by clear and convincing evidence. United States v. Perry, 788 F.2d 100, 114-15 (3d Cir. 1986). The burden of persuasion always rests with the government. Id. Mr. Brown waived his preliminary hearing. Thus, there is probable cause to believe that he committed the offenses charged in the complaint. Consequently, the initial presumption in favor of detention set forth in 18 U.S.C. § 3142(e) applies here.
(Doc. # 12 at 2 citing United States v. Schenberger, 498 F.Supp. 2d 738, 741 (D. N.J. 2007)).
This Court reviews the release order of a magistrate judge de novo. See, e.g., United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985); Borodin v. Ashcroft, 136 F. Supp.2d 125, 128 (E.D. N.Y. 2001).
III. Discussion
It is not disputed that the complaint and waiver of the preliminary hearing in this case provides probable cause to believe that Brown has violated the laws prohibiting the possession and distribution of child pornography. Therefore, the rebuttable presumption set forth in 18 U.S.C. § 3142(e) is in effect and Brown has the burden to offer some credible evidence to rebut that presumption. In other words, the Court must decide whether Brown has produced "countervailing evidence" to provide a basis for his contention that he will appear and will not pose a threat to the community. 18 U.S.C. § 3142(e); Schenberger, 498 F. Supp.2d at 741. The Court concludes that Brown has failed to meet this burden.
The only "evidence" before the Court is a pretrial services report from the Eastern District of Michigan, which recommends Brown be detained without bail and an addendum to that report from Southern District of Ohio pretrial services officer that recommends Brown's release. The Ohio pretrial services officer relies on a telephone conversation with Brown's mother in New York who indicated that she is willing to allow Brown to stay with her, is willing to transport Brown to Columbus for his court hearings in this case, and that she has no computer access in her home. At the hearing before this Court, however, Brown did not present any further "evidence." See United States v. Reiner, 468 F. Supp.2d 393, 395 (E.D. N.Y. 2006) (in child pornography case, detention hearing consisted of four days of "arguments of counsel and the testimony of several witnesses, including several parents of current and former students from LISG, defendant's brother-in-law, a prospective employer of defendant during the pretrial period, and a friend of defendant who offered to house defendant during the pretrial period). Although Brown's burden is only one of production, he has failed to meet it.
Even if Brown had met his burden of showing that he would appear and would not pose a threat to the community, when the Court adds the additional evidence brought before it at the May 12, 2008 hearing to the evidence already in the record, the Court concludes that the Government has shown a risk of flight by a preponderance of the evidence and dangerousness by clear and convincing evidence. United States v. Perry, 788 F.2d 100, 114-15 (3d Cir. 1986).
In reaching its decision, this Court has carefully reviewed the evidentiary record in this case, including listening to the tape recording of the proceedings before Magistrate Judge Kemp, reading all of counsels' briefs, and holding its own detention hearing in which evidence was submitted and a witness testified.
A. Danger to the Community
The government has shown by clear and convincing evidence that Brown poses a threat to the community. This determination is based on an examination of the factors set out in the Bail Reform Act 18 U.S.C. § 3142(g), which are set forth below.
1. The nature and circumstances of the offense charged. 18 U.S.C. § 3142(g)(1).
The affidavit in support of the criminal complaint contains extremely serious charges that bear directly on the issue of danger. See Reiner, 468 F. Supp.2d at 397 (claims of child pornography are "extremely serious charges that bear directly on the issue of danger"). Specifically, the affidavit charges possession of child pornography on several computers and cell phones, consisting of nearly 2000 images of child pornography, nearly 200 videos of children engaged in sexual activity, and 32 images and 12 videos of sadistic sexual abuse of children involving bondage. Moreover, the Government introduced into evidence two shoe boxes full of hundreds of child pornography photographs that were found under Brown's bed. Disturbingly, some of the pictures depicted young boys in bondage. Further, also found near Brown's bed was a pair of young boys underpants and a sex toy.
The charges against Brown constitute crimes of violence under the Bail Reform Act. 18 U.S.C. § 3156(a)(4)(C) (sexual exploitation of children, 18 USCS § 2251 et seq.); see also Reiner, 468 F. Supp.2d at 397 (charges under 18 U.S.C. § 2251 et seq. is a crime of violence); United States v. Devinna, 5 F. Supp.2d 872, 873 (E.D. Cal. 1998) (same). The reason for classifying these charges as crimes of violence is clear. As the United States Court of Appeals for the Third Circuit has pointed out, in connection with the Congressional findings on Section 2251, which the court viewed as closely related to Section 2252A (a section Brown is charged as violating):
In evaluating the magnitude of the harm caused by child pornography, we defer to the findings made by Congress. The congressional findings underlying § 2251 repeatedly stress that child pornography "is a form of sexual abuse which can result in physical or psychological harm, or both, to the children involved." Child Pornography Prevention Act of 1996, Pub.L. No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996) (codified as amended at 18 U.S.C. § 2251) [footnote omitted]. Congress found that "where children are used in its production, child pornography permanently records the victim's abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years." Id. Moreover, "Congress found little distinction in the harm caused by a pedophile, be he a distributor or mere consumer in child pornography, because the mere `existence of and traffic in child pornographic images creates the potential for many types of harm in the community and presents a clear and present danger to all children.'"United States v. MacEwan, 445 F.3d 237, 250 (3rd Cir. 2006) (citing the Child Pornography Prevention Act of 1996, Pub.L. No. 104-208 § 121, 110 Stat. at 3009, 3009-27 (1996)).
Accordingly, the nature and offense of the crimes with which Brown is charged weighs in favor of his continued detention.
2. The weight of the evidence against Brown. 18 U.S.C. § 3142(g).
The Court views the weight of the evidence against Brown as very strong. The Government has proffered evidence that the Canadian authorities tried and convicted Brown on the evidence found in his vehicle when he attempted to enter that country. Further, the additional images and other materials that form the basis of the charges against Brown were obtained from computers and other devices found in Brown's home and under his exclusive control. Also, at the May 12, 2008 hearing, the Government introduced two shoe boxes full of pictures of young boys engaged in sexual conduct including bondage. Moreover, the Government proffered two photo albums that contained pictures of young boys taken at a boys camp where Brown volunteered for several years. The album contained the boys' name tags, photographs of the boys sleeping, of two boys urinating, of boys posing in their underwear, of Brown with the boys, and of an unknown adult male embracing a young boy wearing only underwear and grabbing the child's buttock.
Most troubling, however, Agent Bryant testified that two of the pictures taken by Brown were of a young boy, in one photograph he was clothed and in another nude and that these two photographs were both taken by Brown's camera. Thus, it cannot be said with any assurance that Brown himself is moving toward (or has already engaged in) creating child pornography.
Finally, the investigators in this matter not only found child pornography photographs under Brown's bed during the execution of the search warrant, but they also discovered a boy's underpants in a drawer with a sex toy in close proximity.
The Court concludes that the weight of the evidence against Brown weighs heavily in favor of Brown's continued detention.
3. The history and characteristics of Brown. 18 U.S.C. § 3142(g)(3).
The Court has carefully considered the history and characteristics of Brown, and finds the lack of any evidence that he physically abused children during the several years that he volunteered to work with children and his minimal criminal history both weigh in Brown's favor.
However, Agent Bryant testified that Brown has had questionable contact with children in the past; specifically, numerous attempts to be alone with a child even after adults attempted to stop that behavior. One such incident occurred during a "Big Brother's" canoe outing wherein Brown repeatedly ignored instructions that he and his "little brother" come out of the water for lunch. Brown also displayed odd behavior when he continually fell behind the rest of the group during the canoe trip. Brown was also seen at the YMCA, where he was working, attempting to lure children to his vehicle so that he could photograph them with his cell phone. He also gave one of the children a cell phone. Brown's continued involvement with several organizations that place him in environments where he is able to work closely with children coupled with his collection of child pornography paints a potentially disturbing picture.
Further, the Government has put forth substantial evidence that, besides the large quantity of child pornography Brown possessed, he was also in contact with other child pornographers — at least one of which is a convicted child molester — with whom he traded child pornography and chatted about the topic. Brown possessed the child pornography not only in images on his computers but also images on his cellular telephones and pictures of young boys taken by Brown himself. At least one boy was photographed nude and also clothed.
Although this Court has carefully weighed the factors in Brown's favor, they are insufficient to undermine the finding of danger by clear and convincing evidence — a finding supported by the nature of the charges in this case and the other evidence of danger presented by the Government.
4. The nature and seriousness of the danger to any person or the community that would be posed by Brown's release. 18 U.S.C. § 3142(g)(4).
In this case, there is substantial additional evidence that bears heavily on the issue of dangerousness. For example, as noted supra, Brown possessed large quantities of still images and videos of young children engaged in sexually explicit conduct, including images of sadistic abuse of children. Also, the child pornography was kept on a variety of mediums. Further, Brown has had nearly continuous contact with young boys and has many photographs of these boys that he has taken on his own camera. Brown has been tried and convicted of child pornography in Canada recently.
There is simply no convincing evidence that Brown will be prevented from continuing his illegal behavior if he is released to New York. This Court has absolutely no power to enforce any conditions of release upon Brown's mother. No one has confirmed the conditions of his mother's home or has investigated its proximity to children in the neighborhood in which he would be living.
Finally, the Court finds that the conditions that are meant to prevent Brown from engaging in contact with other pedophiles and obtaining new child pornography are difficult, if not impossible, to enforce and insufficient to assure the safety of the community under the circumstances of this case. Specifically, even electronic monitoring and home detention do not adequately address Brown's ability to access phones or computers in his mother's home even if steps were taken to try to prevent those items from being present or available in the house. In this day and age, with devices such as cellular phones, Blackberries, and laptops, there are no conditions which can reasonably assure the safety of the community under the particular circumstances of this case if the Brown is released on bail. See Reiner, 468 F. Supp.2d at 398 (concluding same).
B. Risk of Flight
The government asserts that Brown presents a risk of flight because he faces a mandatory minimum sentence of 15 years and a maximum of 40 years, 18 U.S.C. §§ 2252(b)(1) and 2252A(b)(1), and the proximity of Buffalo to Canada makes it plausible that he could slip across the border if he were released so as to avoid incarceration in this country. Further, Brown is unemployed and has not been employed in New York for at least five years leaving Brown with few ties to that community. The Court concludes that the Government has met its burden of proving by a preponderance of the evidence that no conditions or combination of conditions could reasonably assure Brown's appearance in court.
However, even if the Government had not met this burden, the Court would still order the detention of Brown solely on grounds of dangerousness. See 18 U.S.C. § 3142(e).
IV. Conclusion
Based on the foregoing, the Court GRANTS the Government's Motion for Review and Revocation of Release Order. (Doc. # 17) Defendant Jonathan E. Brown is ORDERED DETAINED without bail.