Detention Order Pending Trial

 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA

Case No: 14-30113

v.

BRIAN MADDEN,

Defendant.

/

DETENTION ORDER PENDING TRIAL

After conducting a detention hearing under the Bail Reform Act, 18 U.S.C. § 3142(f), I

conclude that these facts require that Defendant be detained pending trial.

Part I - Findings of Fact

A. Motion to Detain (18 U.S.C. §§ 3142(a) and 3142(f)(1))

XX (1) The Government moved for detention at Defendant’s first appearance pursuant to:

XX 18 U.S.C. § 3142(f)(1).

__ 18 U.S.C. § 3142(f)(2).

__ (2) A detention hearing was held on this judicial officer’s motion pursuant to 18 U.S.C.

§ 3142(f)(2). See part D for findings.

B. Rebuttable Presumption – Defendant on Release Pending Trial (18 U.S.C. §3142(e)(2))

__ (1) Defendant is charged with an offense described in 18 U.S.C. § 3142(f)(1), and has

previously been convicted of a crime listed in 18 U.S.C. § 3142(f)(1), or

comparable state or local offense.

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__ (2) The offense described in finding was committed while Defendant was on release

pending trial for a federal, state or local offense.

__ (3) A period of less than five years has elapsed since 

__ the date of conviction, or

__ Defendant’s release from prison for the offense described in finding (B)(1).

__ (4) Findings (B)(1), (2) and (3) establish a rebuttable presumption that no condition or

combination of conditions will reasonably assure the safety of another person or

the community.

C. Rebuttable Presumption – Probable Cause (18 U.S.C. § 3142(e)(3))

There is probable cause to believe that Defendant has committed an offense:

__ for which a maximum prison term of ten years or more is prescribed in the

_______1, or

__ under 18 U.S.C. § 924(c), 18 U.S.C. § 956(a) or 18 U.S.C. § 2332b, or

__ listed in 18 U.S.C. § 2332b(g)(5) (federal crimes of terrorism) for which the prison

term is 10 or more years, or

__ listed in 18 U.S.C. §§ 1581-1594 (slavery or trafficking in persons), or

XX involving a minor victim listed in 18 U.S.C. § 3142(e)(3)(E).

__ the probable cause findings above establish a rebuttable presumption that no

condition or combination of conditions will reasonably assure the safety of

another person or the community.

D. Findings Pursuant to 18 U.S.C. § 3142(f)(2)

__ (1) There is a serious risk that Defendant will not appear.

1

Insert as applicable: (a) Controlled Substances Act (21 U.S.C. § 801 et seq.); (b) Controlled Substances

Import and Export Act (21 U.S.C. § 951 et seq.); or (c) Section 1 of Act of Sept. 15, 1980 (21 U.S.C. § 955a).

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__ (2) There is a serious risk that Defendant will endanger the safety of another person

or the community.

Part II - Statement of the Reasons for Detention

I find that the testimony and information submitted at the detention hearing establishes: 

__ by clear and convincing evidence that, for the reasons set forth below, there is no

condition or combination of conditions which will reasonably assure the safety of the

community; or

__ by a preponderance of the evidence that, for the reasons set forth below, there is no

condition or combination of conditions which will reasonably assure Defendant’s

appearance; or

XX both of the above.

Statement of reasons for detention pursuant to 42 U.S.C. § 3142(i):

Having concluded that the Government timely moved for detention pursuant to 18 U.S.C.

§ 3142(a) in a case described in 18 U.S.C. § 3142(f), I must at the threshold consider

Defendant's argument that the presumption in favor of detention does not apply. Counsel for

Defendant contends that the presumption cannot apply as the first crime charged in the

Complaint involves only an attempt, and as the affidavit concedes there was no minor child

involved, but in actuality an adult DHS agent, acting under cover. In support of his argument,

counsel cites United States v. Kahn, 532 F. Supp. 2d 1278 (W.D. Wash. 2007). The Government

maintains that the presumption does apply, citing 18 U.S.C. § 3142(e)(3)(E). After considering

the arguments of counsel and reviewing the Kahn case, for the reasons that follow, I conclude

that Kahn is distinguishable and that the presumption does apply.

In Kahn, the sole issue was whether the mandatory bond provisions of the Adam Walsh

Act governed the setting of conditions of release. The magistrate judge deciding the case held

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that the mandatory provisions did not apply, in part because he found that there was in fact no

actual child victim. In contrast to this case, no issues of detention were raised in Kahn. Moreover,

as to defense counsel's substantive arguments, it is the standing law of this circuit that an

attempt charge under 18 U.S.C. § 2251 does not require the Government to prove that a

defendant intended to actually engage in sexual activity, but only that a defendant intended to

persuade a minor to do so. United States v. Hughes, 632 F.3d 956, 961 (6th Cir. 2011). Nor, on

an attempt charge, does the Government have to prove that the individual the defendant

attempted to entice was actually a minor. United States v. Hart, 635 F.3d 850, 855 (6th Cir.

2011); United States v. Fuller, 635 F.3d 371, 378 (6th Cir. 2003). In addition, the Government

is correct that two of the charging statutes contained in the Complaint, 18 U.S.C. §§ 2251 and

2252A(a)(2), are specifically referenced in 18 U.S.C. § 3142(e)(3)(E) as included within the

presumption in favor of detention. For these reasons, I conclude that the presumption applies. 

The Court must next consider whether there is sufficient evidence on the record to rebut the

presumption under the factors set forth in section 3142(g).

As to the factors set forth in subsections (g)(1) and (g)(2), I find that the offenses charged

involve the attempted sexual exploitation of a minor and possession of child pornography. I find

from review of the sworn affidavit supporting the Complaint that there is a definite weight of

evidence supporting the charges against Defendant.

As to subsection 3142(g)(3), I find that Defendant is currently 41 years of age. Defendant

is a citizen of Ireland, has an Irish passport and is in the United States on a Green Card due to

expire in January 2016. Defendant is married with two children, a son age 12 and a daughter age

9. Defendant's parents reside in Dublin, Ireland, and Defendant's brother resides in Finland. 

Defendant works for a technology company as a principal consultant in the software and

coding department. He often works from home, although he also regularly visits the company's

offices in Flint. Defendant informed Pretrial Services that he must have access to two laptop

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computers and that Pretrial monitoring of his computer use is incompatible with his work. 

Defendant reported some prior use of marijuana in college, and has no prior criminal history.

Counsel for Defendant argues that Defendant is a candidate for bond, proposing

conditions such as installation of a tether, regular reporting and drug testing. The Government

contends that the presumption in favor of detention has not been rebutted and notes that

Defendant faces a lengthy potential mandatory minimum sentence.

After considering the evidence under the standards set forth in the Bail Reform Act, for

the reasons which follow, I conclude first that the presumption in favor of detention has not been

rebutted and second that there are no conditions or combination of conditions which will

reasonably assure either Defendant's appearance or the safety of the community, especially his

two minor children. While Defendant's wife and children are in this country, his remaining family

are in two different foreign countries. With the appropriate level of Internet access, Defendant

could effectively continue his work anywhere in the world. This fact coupled with the potential

penalties he faces gives rise, I conclude, to a nearly irresistible temptation to flee if given the

opportunity. In addition, conspicuously absent from defense counsel’s suggestions are any

conditions relating to computer usage, or more importantly, any of the Adam Walsh Act

mandatory conditions. 

As to the dangerousness factor, after reviewing the lengthy and extremely explicit Internet

conversations repeated verbatim in the sworn affidavit supporting the Complaint, I can come to

no other conclusion but that Defendant poses a substantial danger, both to the community and

to his own children, if released.

For all these reasons, the Government's motion to detain is GRANTED.

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Part III - Directions Regarding Detention

Defendant is committed to the custody of the Attorney General or a designated

representative for confinement in a corrections facility separate, to the extent practicable, from

persons awaiting or serving sentences or held in custody pending appeal. Defendant must be

afforded a reasonable opportunity to consult privately with defense counsel. On order of United

States Court or on request of an attorney for the Government, the person in charge of the

corrections facility must deliver Defendant to the United States marshal for a court appearance.

Review of this order is governed by 18 U.S.C. § 3145 and E.D. Mich. L.R. 57.2.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: March 20, 2014 United States Magistrate Judge

CERTIFICATION

I hereby certify that this order was electronically filed this date, electronically served on

all counsel of record through the Court’s CM/ECF system, and served on Pretrial Services and

the U.S. Marshals Service by other electronic means.

Date: March 20, 2014 By s/Jean L. Broucek 

Case Manager to Magistrate Judge Binder

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