IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:11-mj-238 

 

Kevin R. Weiner, : Magistrate Judge Kemp

Defendant. :

 

 ORDER

The defendant appeared before the Court on March 28, 2011

for a detention hearing. Following the hearing, the Court took

the matter of detention or release pending trial under

advisement. The Court now orders defendant detained without bond

pending trial. 

Defendant was charged in a criminal complaint filed on March

23, 2011, with violating 18 U.S.C. §2422(b) by attempting to

sexually coerce and entice a minor by computer. He waived a

preliminary hearing, so the Court may presume there is probable

cause to believe that he committed the offense. In addition, the

United States presented evidence at the hearing, in the form of

testimony from Internet Task Force Officer Dan Johnson,

concerning the circumstances of the crime and related

information.

The crime itself consisted of defendant’s posting an

advertisement on craigslist and subsequently establishing

computer communication (email) with an undercover officer posing

as a fourteen-year-old. Eventually, defendant arranged a meeting

with the officer for purposes of performing oral sex. He was

arrested at the meeting site. After his arrest, he acknowledged

that he had a problem with child pornography as well, and images

of nude children were found on his computer.

Subsequent investigation revealed that defendant has also

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been accused by other minors of inappropriate conduct. These

allegations included an alleged victim who is now 18, and two

young teens who complained that defendant had either touched them

inappropriately or, on one occasion, engaged in an oral sex act.

Legal Standard Applicable. A presumption of detention

arises under 18 U.S.C. §3142(e) for persons charged with serious

drug offenses, certain firearms offenses, and certain offenses

involving minor victims, including violations of 18 U.S.C. §2242. 

Section 3142(e) states, in pertinent part, that:

 Subject to rebuttal by the person, it

 shall be presumed that no condition or

 combination of conditions will reasonably

 assure the appearance of the person

 as required and the safety of the

 community if the judicial officer

 finds that there is probable cause to

 believe that the person committed an

 offense for which a maximum term of

 imprisonment of ten years or more is

 prescribed in the Controlled Substances

 Act (2l U.S.C. 801 et seq)...[or] an 

offense under section 924(c)...of this

title... or an offense involving a minor 

 victim [under selected statutes].”

Under 18 U.S.C. §3142(f), if detention is based upon facts

supporting a finding that no condition or combination of

conditions will reasonably assure the safety of any other person

and the community, such facts must be proved by clear and

convincing evidence. However, if detention is based upon a

finding that no condition or combination of conditions will

reasonably assure the appearance of the person as required, proof

by a preponderance of the evidence is sufficient.

 The proper effect to be given to this rebuttable

presumption is discussed in United States v. Jessup, 757

F.2d 378 (1st Cir. 1985). There, the Court indicated that

the presumption shifts the burden of producing evidence to

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the defendants, and also remains in the case even after the

defendants have satisfied their production burden. Further, in a

narcotics case, because the history of the statute indicates that

Congress had in mind a specific set of circumstances relating to

drug offenses which led to the adoption of the rebuttable

presumption, it is appropriate for a Court addressing the

issue of detention to determine how closely the facts of the

case before the Court parallel those of the "Congressional

paradigm," or profile of those drug offenders who present the

most serious risk of flight or danger to the community. That

paradigm, in brief, indicates a Congressional awareness of

the lucrative nature of drug trafficking, and the fact that

many persons engaged in that occupation have substantial ties

outside the United States. Consequently, even if a high

monetary bond is set for such persons, they are able, through

the use of proceeds derived from drug trafficking, to post

such bond, and are also able to flee the country because of

their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statutes, the defendant need not attempt to prove that

he or she did not commit the crime as charged. Rather, that

burden can be met by introducing evidence of other appropriate

factors as described in 18 U.S.C. §3142(g), including personal

history and characteristics relating to character, 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 in court proceedings. If any such evidence is

introduced, the presumption cannot be used by the Court as

conclusive evidence that the defendant poses an unacceptable risk

to the community or that conditions will not reasonably assure

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the defendant’s appearance. United States v. Dominguez, 783 F.2d

702 (7th Cir. 1986). However, that presumption still remains in

the case to be given whatever weight the Court deems appropriate.

Here, in addition to the presumption, the Court notes that

the defendant is facing a term of imprisonment of between ten

years and life. The allegations of sexual contact with other

minors, and the defendant’s possession of images of child

pornography, are also especially troublesome.

There are some countervailing factors. According to the

Pretrial Services report, the defendant has strong ties to the

Columbus community, and he has served in the United States Navy. 

He has no significant criminal history, and he would have a

stable residence if released. He could be placed on electronic

monitoring. He has a good employment history and there is no

indication that he abuses drugs or alcohol. The Pretrial

Services office recommended release on conditions, although the

report did not take into account the additional information

presented at the hearing about the possibility of additional

victims or past offenses.

There is no question that the mere possession of child

pornography poses a danger to the community. See United States

v. Brown, 2008 WL 2098070, *3 (S.D. Ohio May 16, 2008) (Frost,

J.), citing United States v. Reiner, 468 F.Supp. 2d 393, 397

(E.D.N.Y. 2006). Such a crime is also classified as a crime of

violence. Id. Actually arranging for a meeting with a minor for

purposes of engaging in sexual contact is a more serious crime,

and is also properly considered to be a crime of violence. See

United States v. Smith, 20 Fed. Appx. 412 (6th Cir. September 25,

2001); see also United States v. Searcy, 418 F.3d 1193 (11th Cir.

2005); cf. United States v. Champion, 248 F.3d 502 (6th Cir.

2001). It is difficult to overestimate the danger posed by a

defendant who not only openly solicits sexual contact on a public

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forum such as craigslist, but who then arranges a meeting with

someone believed to be only fourteen years old and who actually

appears for the meeting. The existence of child pornography on

defendant’s computer and the other complaints against him, while

certainly not proven at this point beyond a reasonable doubt,

call into question whether any release conditions would be

sufficient to safeguard the community against the commission of

offenses either directly against minor victims or in violation of

the child pornography laws. As the Court recognized in United

States v. Brown, supra, conditions such as electronic monitoring

or even a third-party custody arrangement may be insufficient in

a case like this to protect the community. 

This would perhaps be a different case if the penalty were

not so severe, if defendant did not also possess child

pornography, and if there was no evidence that he had ever

engaged in sexual conduct with other minors. If these factors

were not present, the recommendation of release made by the

Pretrial Services officer might be appropriate. But this is not

that case, and here, the evidence, taken as a whole, leads the

Court to conclude that the presumption of detention, even if

addressed by some of the positive facts in the Pretrial Services

Report, is weighty enough to carry the day in favor of the United

States’ request for detention without bond. Thus, the Court

grants that motion.

The defendant is advised of his right to seek review of this

order by a United States District Judge pursuant to 18 U.S.C.

§3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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