* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30670

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARK R. EMMONS

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 6:08-CR-57-1

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Mark R. Emmons appeals from a pretrial-detention order. 

Originally, Emmons was indicted in the Western District of Louisiana on

two counts of attempted production of child pornography, one count of using a

facility in interstate commerce to attemptto coerce a minor to engage in criminal

sexual acts, and one count of attempting to distribute child pornography to a

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2008

Charles R. Fulbruge III

Clerk
No. 08-30670

2

minor. Upon his arrest in Connecticut, the Government filed in the Connecticut

district court a motion for pretrial detention. 

The Government contended in the motion that: (1) Emmons’ case was

eligible for pretrial detention because itinvolved a crime of violence and because

there was a serious risk that Emmons would flee; (2) the court should detain

Emmons because there were no conditions of release which would reasonably

assure Emmons’ appearance or the safety of the community; and (3) there was

a rebuttable presumption against release, pursuant to 18 U.S.C. § 3142(e),

because there was probable cause to believe that Emmons had committed an

offense involving a minor victim. 

After a detention hearing, the Connecticut district court ordered that

Emmons be released on $500,000 bond, subject to numerous conditions, some of

which restricted his ability to travel or access a computer. 

Subsequently, a superseding indictment charged Emmons with two counts

of attempted production of child pornography, in violation of 18 U.S.C. § 2252(a),

and four counts of using a facility in interstate commerce to attempt to coerce a

minor to engage in criminal sexual acts, in violation of 18 U.S.C. § 2422(b). At

Emmons’ arraignment in the Western District of Louisiana, the Government

moved for detention because of Emmons’ endangerment of the community and

because of the new charges filed in the superseding indictment. A magistrate

judge denied the Government’s motion because there already had been an

extensive detention hearing in Connecticut and the conditions set at that

hearing seemed appropriate under the circumstances.

The Government appealed the magistrate judge’s order to the district

court, asserting: district courts have authority to review other courts’ orders;

and new evidence supporting the superseding indictment provided a basis for a

new hearing. The Government contended that all of the charges in both the
No. 08-30670

3

original and superseding indictments entailed a presumption in favor of

detention, pursuant to 18 U.S.C. § 3142(e).

At a subsequent detention hearing,the district court, atthe Government’s

request and without objection by Emmons, took judicial notice of “the fact that

[§ 3142] specifically gives a rebuttable presumption that detention is appropriate

in cases for which the defendant is charged with these crimes”. After

considering lengthy testimony and evidence concerning Emmons’ attempts to

initiate sexual acts with undercover police officers posing as minors using

internet chat rooms, the district court stated at the hearing that Emmons had

not presented sufficient evidence to overcome the presumption in favor of

pretrial detention. In so ruling, the district court determined that the probation

office could not completely prevent Emmons from finding another computer to

contact a minor. (Nothing in the record indicates that the district court filed a

written order concerning its order of detention.) Emmons appealed. See 18

U.S.C. § 3145(c).

There is some question whether the district court was required to “include

written findings of fact and a written statement of the reasons for detention”

under the terms of 18 U.S.C. § 3141(i)(1), despite Federal Rule of Appellate

Procedure 9(a)’s allowing the district court to enter its reasons for a pretrialdetention order either “in writing, or orally on the record”. This question

remains for another day, however, because Emmons does not raise this issue on

appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (issues and

arguments not briefed adequately are waived).

Regarding the substance ofthe detention order, a person must be released

pending trial unless a judicial officer finds by clear and convincing evidence that

“no condition or combination of conditions will reasonably assure the appearance

ofthe person as required and the safety of any other person and the community”.

18 U.S.C. § 3142(e); see United States v. Fortna, 769 F.2d 243, 250 (5th Cir.
No. 08-30670

4

1985). There is a rebuttable presumption, however, that no conditions will

reasonably assure the person’s appearance or the safety of the community if the

judicial officer finds there is probable cause to believe the person committed “an

offense involving a minor victim under [18 U.S.C. §§ 2251 or 2422]”. 18 U.S.C.

§ 3142(e).

In appealing from the pretrial-detention order, Emmons contends, for the

first time on appeal, that a rebuttable presumption in favor of detention should

not have been applied because his crime involved agents rather than actual

minors. In the alternative, he contends that, even if that presumption did apply,

he had already agreed to conditions of release that were sufficient to protect the

community. 

Generally, absent an error of law, this court will uphold a district court’s

pretrial detention order if it is supported by the proceedings in that court, a

standard of review that this court equates to an abuse-of-discretion standard.

United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992). Under this

standard, we look to whether “the evidence as a whole supports the conclusions

of the proceedings below”. Id.

Concerning the rebuttable-presumption issue, Emmons admits he did not

objectto the district court’s application ofthat presumption in favor of detention.

We review the district court’s application of the that presumption, therefore,

only for plain error. See United States v. Giordano, 41 F. App’x 522, 522-23 (2d

Cir. 2002) (reviewing application of rebuttable presumption for plain error (if at

all) where defendant failed to object to it at detention hearing); United States v.

Guebara, 15 F. App’x 584, 589 (10th Cir. 2001) (reviewing issue that was not

raised at bond revocation proceedings for plain error). Under plain-error review,

in the light of the lack of authority in this, or any other, circuit regarding

whether the rebuttable presumption is limited only to cases whose facts involve

actual minor victims (again, Emmons’ conduct involved undercover agents), the
No. 08-30670

5

district court could not have plainly erred in applying the rebuttable

presumption in favor of detention pursuant to § 3142(e). See United States v.

Hull, 160 F.3d 265, 272 (5th Cir. 1998) (holding that an error whose

identification requires the extension of precedent is not plain). 

As discussed, Emmons’ alternative contention is that, even if the

rebuttable presumption applies, he overcame it because he had agreed to

conditions that would prevent him from accessing a computer and because there

was no evidence that he would violate those conditions. The district court ruled

that Emmons could not rebutthe presumption based on its finding the probation

office could not prevent Emmons from accessing another computer to contact a

minor. Given the record evidence of Emmons’ extensive and persistent efforts

to engage in prohibited conduct with minors, we hold that the district court’s

ruling is supported by the proceeding below and did not,therefore, constitute an

abuse of discretion.

AFFIRMED.