1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff,

v. DAVID ALAN JOHNSTON, Defendant. Civil No. 17-MJ-0046 (BAH) Chief Judge Beryl A. Howell

MEMORANDUM OPINION The defendant, David Alan Johnst on, has been charged in a comp laint with one count of Travel With Intent to Engage i n Illicit Sexual Conduct, in viol ation of 18 U.S.C. § 2423(b), Compl. at 1, ECF No. 1, and has been held without bond since hi s arrest on February 1, 2017, Min. Entry (dated Feb. 1, 2017). Following the government’s em ergency appeal of a magistrate judge order releasi ng the defendant, see Gov’t’s Mot. for Emerg ency Stay and Review of Release Order (“Gov’t’s Mot. ”), ECF No. 16, this Court, at a he aring on September 22, 2017, denied the defendant’s mo tion for pretrial release, see Def.’s Mot. for Limited Pretrial Release for the Purpose of Obtaining Med ical Treatment for Cancer Diagn osis (“Def.’s Mot.”), ECF No. 5; Min. Entry (dated Sept. 22, 2017) . This Memorandum and Orde r sets out the findings and reasons for detention. See 18 U.S.C. § 3142(i) (requiring that a detention order “include written findings of fact and a written sta tement of the reasons for the detention”); see also United States
v. Nwokoro , 651 F.3d 108, 109 (D.C. Cir. 2011) (noting that the Bail Refo rm Act requires a pretrial detention order be s upported by “‘a clear and legally sufficient basis for the court’s determination’” in w ritten findings of fact and a written state ment of the reasons for the2 detention or in “‘the transcrip tion of a detention hearing’” (q uoting United States v. Peralta , 849 F.2d 625, 626 (D.C. Cir. 1988))) (per curiam).
I. BACKGROUND AND FINDINGS The defendant was arrested on January 31, 2017, for one count o f Travel with Intent to Engage in Illicit Sexual Conduc t, in violation of 18 U.S.C. § 2 423(b), Compl. 1, after he had traveled to Washington, D.C. fro m Virginia, in accordance with a plan to meet and engage in sexual acts with a purport ed nine-year old girl, see Gov’t’s Mot. at 9–1 0. According to the Complaint and the government’s pr offer, these plans had been ar ranged during the course of nine days of communications that the defendant had with D.C. Metropo litan Police Detective Timothy Palchak (“UC”), who wh ile acting in an undercover capac ity as part of the Metropolitan Police Department-Federal Burea u of Investigation Child Exploit ation Task Force, pretended to be the girl’s father. See Compl., Attach 1, Stm. of Facts in Supp. of Compl., 1, 10–11, ECF No. 1-1; Gov’t’s Mot at 3. The defendant initiated com munications, on January 22, 2017, by sending the UC a message regarding the former’s enjoyment of “taboo sex” over a free mobile application named “Kik.” Gov’t’s Mot. at 3–4. Betw een that date and January 31, 2017, the defendant and UC exchanged messages, in which the defendant described in detail the sexual acts he intended to perform on the UC’s purported nin e year-old dau ghter and how he sought to prepare. See, e.g.,
id. at 7 (“I’ll let her suck me a little then I’ll stroke while sh e Sucks you and I’ll cum above her pussy. . . . “I’m thinking of using one if her dildos and rolli ng it in my cum then letting her suck it off while I eat her pussy); id. at 9 (“I can’t wait to finger her then Lay her on a table and spread her legs to eat her while she Sucks you.”); id. at 7 (explaining defenda nt “would not be having sex with his wife [the] weekend [ before] because wanted to ‘sav e it for’ the UC’s nine-year-3 old”). When the UC asked the defe ndant if he was actually “int erested in meeting or just enjoy[s] the fantasy of it,” the defendant said “Both.” Id. at 5. The defendant, in his conversati ons with the UC, revealed pers onal information and admitted to at least two other instances of engaging in sexual abuse of children. The defendant, for example, shared over KiK info rmation about his family, whic h was later confirmed by law enforcement, including the names, ages, and residence of his ch ildren, as well as details about his wife. Id. at 8. The defendant also admitted that he had sexually abused his middle daughter, beginning when she “was eight year s old while her mother ‘was g one on business trips a bunch.’” Id. The government confirmed from pe rsonnel records obtained from t he Air Force that “the defendant was court martialed after pleading guilty t o illicit sexual contact with a child under the age of 16, and as a result, was discharged from the s ervice for bad conduct.” Gov’t’s Mot. at 14. In an interview with l aw enforcement, “[t]he defen dant’s now-adult daughter recently confirmed that the defendant sexually abused her for y ears, beginning from the time she was eight years old.” Id. The defendant’s counsel also acknowledged the abuse in the September 22, 2017 hearing before this Court. See Rough Hr’g Tr. (Sept. 22, 2017) at 40:4–24 (providing defendant’s counsel’s response to the Court asking i f “the abuse of their daughter all occurred when Mrs. John[ston] w as married,” with “Right,” and e xplaining “that there was an incident 27 years ago for whic h Mr. John[ston] was court marsha led,” and “was dishonorable discharged”). 1 Regarding the defendant’s behavi or more recently, the governmen t has provided a KiK chat and email from the defendant t hat demonstrate “[t]he defen dant also has known associations with individuals who have a sexua l interest in children and/or who have access to children.”

1 According to the government’s proffer, the defendant lied on a 2010 SF86 form that his military discharge was “honorable” rather than “dis honorable.” Gov’ t’s Mot. at 28 n.14; id. , Ex. 5 at 5, ECF No. 16-3.4 Gov’t’s Mot. at 20 (showing defe ndant telling UC in chat that “ I have a local friend with a 12 year old. He had his girlfrie nd and me over one night and was showing his daughter. He came on her pussy and the girlfriend sta rted eating th e little girl” ); id. , Ex. 1 at 1, ECF No. 16-1 (providing email from defendant stating “I have another friend that has a 12 year old that I played with last year”). In addition to these admissions of at least two other instance s of the defendant engaging in sexual abuse of a child, the government proffered that the d efendant is “also under investigation by Virginia author ities for arranging to have sex with a 14-year-old child, conduct uncovered through an entirely sep arate undercover operation con ducted by Virginia law enforcement.” Gov’t’s Mot. at 14. In fact, the defendant’s le ngthy pretrial detention is partially attributable to efforts to reac h a “global” disposition of pote ntial charges against him arising from the instant investigation a s well as the local Virginia in vestigation. See Rough Hr’g Tr. (Sept. 22, 2017) at 28:3–5. On September 4, 2017, the defendant sought pretrial release in order to obtain medical treatment from the medical prof essionals of his choice after he was diagnosed, in June 2017, by medical personnel in the Departmen t of Corrections (“DOC”) with colon cancer. Def.’s Mot. at 1, 3-5. The defendant, “[b]ased on “ voluminous medical records documenting [his] medical treatment by [DOC] versus the tre atment [he] would be afforded through his health insurer,” argues he should be “released s o as to obtain the best possible treatment for his cancer.” Def.’s Response to Gov’t’s Mot. for Eme rgency Stay and for Review of R elease Order (“Def.’s Response”) at ¶¶ 1, 3, ECF No. 20. Although, based on that rec ord, “[t]he defendant argues that the Court can infer that he will receive inadequate medical car e going forward because DOC has provided inadequate care to date , as evidenced by the delay in his treatment,” the government5 cites the same “medical records [to] demonstrate that the defen dant delayed his own treatment by cancelling and refusing appointme nts.” Gov’t’s Mot. at 26. “T he defendant has provided no evidence that he will receive inadequate medical care while inc arcerated. The mere fact that this defendant has private insurance and prefers to be treated elsew here is not a basis for this Court to treat him differently from any ot her inmates currently receivin g cancer treatment.” Id. 26–27. The Magistrate Judge granted the defendant’s motion for release , following several hearings, on September 21, 2017. In her written memorandum opi nion, Mem. Supp. Pretrial Release Order, ECF No. 21, relea sed after this Court had grante d the government’s request for review and denied the defendant ’s motion, the Magistrate Judge explained that while “reluctant to release” the defendant, she w as granting the motion based on the defendant’s medical history,
id. at 11, and by imposing stringent r equirements for his twenty-o ne day release, e.g., requiring the defendant’s wife to serve as supervisor and imposing, inter alia , GPS monitoring, limits on outside access and access to m inors, limits on use of devices, no internet, and password resets, the defendant’s motion, id. at 15–17. The government’s appeal followed.
II. LEGAL STANDARD A motion under 18 U.S.C. § 3145(b) for r eview of a Magistrate J udge's detention order requires that the Court review de novo whether conditions of release exist that “will reasonably assure the defendant’s appearan ce in court or the safety of any other person or the community.”
United States v. Hassanshahi , 989 F. Supp. 2d 110, 113 (D.D.C. 2013) (citing 18 U.S.C. § 3142(e)(1)). “‘The Court is free to use in its analysis any evi dence or reasons relied on by the magistrate judge, but it may als o hear additional evidence and rely on its own reasons.’” United
States v. Hubbard , 962 F. Supp. 2d 212, 215 (D.D.C. 2013) (quoting United States v. Sheffield ,6 799 F. Supp. 2d 18, 20 (D.D.C. 2011)); see also United States v. Hitselberger , 909 F. Supp. 2d 4, 7 (D.D.C. 2012). The Bail Reform Act of 1984 provides that “a person awaiting trial on a federal offense may either be released on pers onal recognizan ce or bond, condit ionally released, or detained,” United States v. Singleton , 182 F.3d 7, 9 (D.C. Cir. 1999) (citing 18 U.S.C. § 3142(a)), but only detained after a detention h earing, 18 U.S.C. § 3142(f), consid eration by the judicial officer of “the available information concerning” enumerated factors, id . § 3142(g), and a finding, supported by “clear and convincing evidence,” id . § 3142(f), “that no condition or combination of conditions will reasonably assure the appearance of the pers on as required and the safety of any other person and the community,” id . § 3142(e)(1). “Subject to re buttal by the person, it shall be presumed that no condi tion or combination of condition s will reasonably assure the appearance of the person as re quired and the safety of the comm unity if the judicial officer finds that there is probable cause t o believe that the person committ ed . . . an offense involving a minor victim under [18 U.S.C. § 2423].” Id. § 3142(e)(3)(E). 2 In determining whether conditions o f release exist that will re asonably assure the appearance of the person as required and the safety of any othe r person and the community, the judicial officer must consider four factors: (1) the nature and circumstances of the offense charged, including whether the offense . . . involves a minor victim; (2) the weight of evidence against the person; (3) the history and characteristi cs of the person, including . . . the person’s character, physical and mental condition, family ties, employme nt, financial resources, length of residence in the community, community ties , past

2 The defendant has not been indicted, and, as a result, no indi ctment establishes pro bable cause to believe that the defendant committed the charged offense. Nonetheless, the government has proffered evidence transcripts of the defendant’s communications with the UC, his plans to eng age in sexual acts with the UC’s purported daughter, and his admissions regar ding his travel into D.C. and intent to meet the UC and his purported daughter. For that reason, this Court finds that the government’s proffer provides the requisite probable cause, and thus the rebuttable presumption of detention applies.7 conduct, history relating to dr ug or alcohol abuse, criminal hi story, and record concerning appearance at court proceedings; and . . . whether, at the time of the current offense or arr est, the person was on probation, on parole, or on other release pending trial, sen tencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of t he danger to any person or the c ommunity that would be posed by the person’s release.
Id. § 3142(g). Both the government a nd the defendant may offer ev idence or proceed by proffer.
United States v. Smith , 79 F.3d 1208, 1209–1210 (D.C. Cir. 1996).
III. DISCUSSION Consideration of the four f actors, under 18 U.S.C. § 3142(g), a s discussed below, establishes that continued pretri al detention is warranted here

. A. The Nature and Circumstances of the Charged Offense The first factor, the nature and c ircumstances of the charged o ffense, weighs in favor of detention because the charg ed violation of 18 U.S.C. § 2423(b) pending against the defendant is a serious crime, involving the defe ndant’s travel with the inte nt to engage in illicit sexual conduct with a nine year-old mi nor victim. Consequently, the r ebuttal presumption that no condition or combination of conditions will reasonably assure t he safety of any other person and the community applies, under 18 U.S.C. § 3142(e)(3)(E); see also Compl. at 1; Gov’t’s Mot. at 15–17. Moreover, because § 2423(b) a llows for imprisonment up to thirty years, t he defendant is facing charges for similar conduc t in Virginia, and the governm ent is representing a global plea as a potential offering, see Rough Hr’g Tr. at 28:3–5, the defe ndant may face substantial p rison time. For these reasons, this f irst factor strongly favors det ention.
B. The Weight of the Evidence The weight of the evidence is strong and therefore also strongl y favors pretrial detention. In this case, the government has pr ovided transcripts, as detai led above, of explicit and8 disturbing communications, in whic h the defendant agrees to eng age in illicit sexual conduct with a minor victim, the purporte d nine year-old daughter of th e UC. See Gov’t’s Mot. at 7–10. Notably, the defendant specificall y stated that he was interest ed in “both” enjoying the fantasy and actually meeting. Id. at 15. Moreover, the evidence sh ows that the defendant “execu ted the plan, traveling nearly an hour from his workplace near Frederic ksburg, Virginia into Washington D.C. to meet the [UC] at t he prearranged location.” Id. at 16. “[A]lthough the defendant attempted to claim in his post-a rrest interview that he was mer ely involved in ‘fantasy,’ the defendant himself acknowledged dur ing the same interview that h e traveled into Washington D.C. to ‘meet him [the UC] and t hen meet her [the purported dau ghter]’ and that he understood the UC was engaging in sexual acts with his own daughter.” Id. at 17. The record also includes statements from the defendant admitting abuse of his daughter, id. at 4, and his sexua l abuse of at least one other minor, id. at 20. For the foregoing reasons , the weight of the evidence very strongly favors detention.
C. The History and Characteristics of the Defendant The most startling and troubling a spect of the defendant’s hist ory is that the instant arrest is not the first time he engaged in illicit sexual conduct with minors. He has a prior conviction, albeit twenty-seven years ago, f or sexually abusing his adopted daughter—a fact that is corroborated by both his dishonorab le discharge and confirmed b y the victim herself. Id. at 14. Moreover, the instant arrest is not the only current incident o f the defendant engaging in this illegal and dangerous conduct. At virtually the same time that the defendant was engaging in conversations with the UC in c onnection with this case to engag e in sexual activity with a nineyear old, he was also apparentl y having conversations with a pu rported fourteen year-old female,9 which was uncovered through a Virgi nia detective conducting a s eparate undercover operation. Gov’t’s Mot. at 14, 19–20. Nevertheless, the defendant rest s on his current medical diagno sis of colon cancer and complaints about the level of med ical care provided at the DOC as outweighing any other consideration for his release, c laiming that his chances of sur vival not only weigh in favor of, but actually depend on, release. Def.’s Response ¶ 3. Although th e magistrate judge was persuaded by this argument, despite finding t hat other factors weighed in favor of detention, Release Mem. at 10–13, this Court cannot agree. DOC has experience treating inmates for cancer, is providing such medical care to inmates now, and stands ready to provide t reatment to the defendant. Gov’t’s Mot. at 23; id. , Ex. 2, ECF No. 16-2 (explaining DOC ’s ability to handle defen dant’s care). While understandable that the defendant would prefer to obtain treatment from the medical professionals of his c hoice, with his wife and anyone e lse he wants by his side, and without security precautions, like shackles, see Def.’s Response ¶ 1, by his alleged conduct, he has forfeited that choice. Th e defendant’s history and charact eristics weigh str ongly in favor of continued detention.
D. The Nature and Seriousness of the Danger to the Community The final factor also favors de tention. Given t he consideratio ns discussed with respect to the other three factors, includi ng the weight of the evidence a gainst the defendant, and his prior conviction and dishonorable military discharge for abusing his daughter, and his involvement virtually simultaneously with the instant charge in similar con duct with a Virginia law enforcement officer, the possibl e danger to the community is si gnificant and collectively outweighs any of the defendant’s t ies to the community and eventhe most stringent of the release conditions crafte d by the magistrate judge. See Release Mem. at 13 (attempting to10 impose conditions, while recognizi ng that “[i]f Mr. Johnston we re released and given access to minors, either directly or thr ough the internet , that would sev erely endanger the community”). The defendant will be out in the community, subject to the cust ody of his wife, whom the defendant has been able to hood-wi nk before abouthis abuse of their own daughter and more recent abusive activity. 3 This simply does not provide the assurances necessary to perm it release of this defendant. Hence, the Court finds that the defendant has not rebutted the presumption that no conditions will reasonably assure the appearance of the defenda nt as required and the safety of the community.
IV. CONCLUSION For the foregoing reasons, the Court concludes that the defenda nt has failed to rebut the presumption for detention that applies here, and the government has demonstrated “that no condition or combination of conditions will reasonably assure t he appearance of the person as required and the safety of any ot her person and the community.” Id . § 3142(e)(1). Accordingly, the government’s motion to revoke the magistrate judge’s order is granted and the defendant’s motion for release from custody t o obtain medical treatment is denied. The defendant shall be held without bail pend ing the resolution of t he charges against him. Date: September 28, 2017

________________________ BERYL A. HOWELL Chief Judge

3 As the government states: “The defendant’s wife has . . . demo nstrated a troubling lack of insight into the danger the defendant poses, as re flected in the statements she made this year to a psychological examiner hired by the defendant, in which she rationalized the defendant’s sexual abuse of her eight year old daughter as a form of ‘angry pay back’ for marital issu es they were having.” Gov’t’s Mot. at 29; id. , Ex. 6, ECF No. 16-4. The government has also provided an interview with the wife in whic h she stated that there was no abuse, id. , Ex. 7, ECF No. 16-5, despite the fact that the defendant pled guilty in 19 90, Gov’t’s Mot. at 29.