IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America, :

Plaintiff, :

v. : Case No. 2:10-mj-235

Lowell W. Thompson, : MAGISTRATE JUDGE KEMP

 Defendant. :

ORDER

The above defendant appeared before the Court for a

preliminary hearing and a detention hearing on April 21, 2010. 

At the conclusion of the hearing, the Court found probable cause

to believe that the defendant committed the offenses with which

he was charged in the complaint, and also ordered him detained

pending trial. This order explains why.

Mr. Thompson has been charged with the production and

distribution of child pornography with a nexus to interstate

commerce. Evan Pridham, an FBI task force officer, gave the

following testimony at the hearing. 

In late March or early April, 2010, the Mt. Sterling, Ohio

police department contacted the United States Attorney’s Office

asking for assistance in its investigation of the defendant for

producing and mailing child pornography. A minor female had

complained to the police department that defendant filmed her and

another minor female engaging in simulated sexual activity while

dressed in lingerie which he provided to them. Defendant was

subsequently interviewed by the police and admitted to not only

that act, but other instances of filming minors engaged in real

or simulated sexual activity. He told the police that he made

such films and mailed them to an acquaintance in Arizona, and

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that he received payment for doing so. As part of the

investigation, at least one other minor female was interviewed,

and she corroborated the first victim’s statement. She also said

she had viewed one of the films and recognized the minor female

in that film, which showed defendant and the victim engaging in

oral sex. A search warrant was executed which yielded a number

of VHS tapes and other video recordings as well as two video

cameras. A bag of small-sized lingerie was also found.

After his police interview, defendant was allowed to return

to his home, purportedly to obtain additional evidence about the

identity of the person to whom the films were mailed. When he

did not return as agreed, a warrant was issued for him. He

remained a fugitive for almost three weeks before being arrested

on April 18, 2010. After his arrest, defendant was interviewed

by Officer Pridham. He admitted engaging in a sex act with a

minor female on one occasion, but claimed he made up the story

about making and mailing films to someone in Arizona because he

was being pressured by the Mt. Sterling Police Department.

On cross-examination, Officer Pridham acknowledged that the

review of the tapes or other videos taken from the defendant’s

home had not yet been completed, and that it was not known

whether any of them contained child pornography. Additionally,

Officer Pridham was told by members of the defendant’s family

that the Arizona acquaintance, Bob James, had died “some time

ago.” Further investigation into Mr. James is continuing. 

Legal Standard Applicable. The United States' request

for detention is based primarily upon the presumption that

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

drug offenses, certain firearms offenses, and certain offenses

involving minor victims. That statute states, in pertinent part,

that:

 Subject to rebuttal by the person, it

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 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

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

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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

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, the Pretrial Services Report shows that Mr. Thompson

has prior convictions for gross sexual imposition and attempted

gross sexual imposition. Officer Pridham testified that these

cases also involved minor victims. The defendant has been selfemployed for a number of years and also receives social security

disability payments. If released, he could reside with his

father under electronic monitoring. He is a life-long resident

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of central Ohio. He has been diagnosed with bipolar disorder. 

The Pretrial Services Report recommends detention.

The Court concluded that the defendant did not adequately

rebut the presumption of detention which exists in this case. 

The circumstances of the charged offense, the defendant’s

admission of other sexual contact with minors, and his prior

convictions, all reinforce the notion that he is a danger to the

community. His failure to return to the Mt. Sterling Police

Department after his initial interview, and his being a fugitive

for several weeks, reinforces the notion that he is a risk of

flight. Nothing in his background, or the availability of

electronic monitoring, persuades the Court that there are release

conditions which would adequately assure either the safety of the

community or the defendant’s future court appearance. He is

facing a very long mandatory sentence if convicted. Under all of

the circumstances, the Court concluded that he was required to be

detained without bond pending trial.

 The defendant was advised of his right to seek review of

this detention order pursuant to 18 U.S.C. §3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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