IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:12-mj-070 

 

Michael E. Hanna, : Magistrate Judge Kemp

Defendant. :

 

 DETENTION ORDER

The defendant, Michael E. Hanna, accompanied by counsel,

appeared for a preliminary hearing and detention hearing on

February 7, 2012. He waived his preliminary hearing and

stipulated to the facts set forth in the complaint for purposes

of the detention hearing. A number of witnesses also testified

at the hearing. Because the defendant is charged with violating

18 U.S.C. §§2251 and this case involves a minor victim, and

because his waiver of the preliminary hearing allows the Court to

conclude that probable cause exists to support that charges, the

issue of detention in this case begins with a presumption of

detention, explained as follows.

Legal Standard Applicable. The United States' request

for detention is based in part 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

 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

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 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

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

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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.

The complaint states that defendant made contact with Task

Force Officer Marcus Penwell, a Franklin County Sheriff’s Office

detective, on January 4, 2012, after Officer Penwell responded to

an ad which defendant had placed on an internet service stating

that he was interested in “forbidden loves.” Officer Penwell

posed as the father of two minor daughters, and over the next

several weeks he and defendant arranged, through online chats, to

meet for the purpose of having the girls perform sex acts with

both defendant and their supposed father, and for each to

photograph these acts for the benefit of the other. 

Eventually, the two arranged to meet on January 28, 2012. 

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Officer Penwell had provided some information about things that

the “girls” were interested in, and defendant arrived at the

meeting place with a camera, a Dora the Explorer Doll, and an

iTunes gift card. When arrested, he admitted to having placed

the ad, and stated that he did intend to photograph the “girls”

having sex with their father. He also admitted to a prior

conviction for conspiracy to commit sexual batter, an offense

that also involved a father having sex with his minor daughter. 

Officer Penwell testified to additional details about this prior

crime, including the fact that it involved forced sex acts and

physical abuse of the victim. Defendants’ family members who

testified stated that they would be willing to allow him to

reside in their residences on electronic monitoring and that they

would use their best efforts to assure that he complied with any

bond conditions which might be set.

The facts, of course, are consistent with a violation of 18

U.S.C. §2251, which prohibits the production or attempted

production of child pornography, and that brings the rebuttable

presumption in favor of detention into play. There are other

factors, apart from the presumption in favor of detention, which

the Court must consider. See 18 U.S.C. §3142(g). In this case,

those which favor detention are the fact that this offense

involves minor victims and is considered to be a crime of

violence, that the evidence appears strong, that the defendant

has a prior conviction for a sexual crime involving a minor

victim, and that he appears to be a frequent user of marijuana. 

Those which favor release, as set forth in the Pretrial Services

report, include defendant’s ties to the community, his family’s

support, and his employment history, 

The question here is which of these matters carry more

weight in determining whether the defendant could be released

under conditions which would protect society from further similar

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criminal behavior. And there are a host of strict conditions the

Court could impose, such as electronic monitoring, mental health

counseling, restrictions on access to minors, and restrictions on

internet access, which are tailored to this type of offense and

which can be effective in safeguarding the community. 

The Court finds the decision in United States v. Burdette,

___ F.Supp.2d ___, 2011 WL 4379534 (D.D.C. August 30, 2011), to

be instructive. There, the court detained a fifty-two year old

productively-employed defendant with no criminal record based on

evidence that he possessed downloaded images of child pornography

and attempted, but did not succeed in his efforts, to videotape a

minor engaging in sexual conduct (in that case, someone he

believed to have been a twelve-year-old girl). The court

commented “that defendant's release would pose a significant

danger to a particularly vulnerable segment of the

community—children” and that there were no release conditions

which would reasonably assure the community’s safety. Id. at *3. 

Recently, the undersigned Magistrate Judge detained a defendant

who had no relevant criminal history and had substantial ties to

the community, but, in addition to possessing and viewing images

of child pornography, had taken nude photographs of a young

female child he had been babysitting (although the photographs

were not pornographic) and had been accused, but not convicted,

of sexually assaulting that child’s older sister and showing

pornography to her brother. United States v. Baird, 2010 WL

2889086 (S.D. Ohio July 19, 2010). 

This case could be viewed as a stronger case for detention

than Baird, where the evidence about the defendant’s having acted

out on certain impulses consisted primarily of accusations of

improper conduct rather than, as here, fairly solid proof. 

Further, this was not a case where the defendant responded

quickly to an unanticipated situation, but one where he actively

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solicited contact with minors and made elaborate plans for

carrying out his intentions. The prior conviction and the

circumstances surrounding it are also very disturbing, and paint

a picture of an individual who poses a special type of danger to

minor victims and who has not reformed his conduct. Thus, while

there are certainly factors in this case which go some way toward

rebutting the presumption against release, the Court concludes

that they are not strong enough, when weighed against both the

presumption and the other relevant factors the Court must

consider, to justify release. The Court therefore grants the

United States’ motion for detention and orders the defendant

detained without bond pending trial. 

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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