UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 07-cr-050-01-PB

Gene Stram

ORDER OF DETENTION PENDING TRIAL

18 U.S.C. "§ 3142(f) does not authorize a detention hearing

whenever the government thinks detention would be desirable, but

rather limits such hearings to the (six circumstances listed in

18 U.S.C. § 3142(f)(1) and (f)(2))." United States v. Ploof, 851

F.2d 7, 10 (1st Cir. 1988). "[A] defendant’s threat to the

safety of other persons or to the community standing alone, will

not justify pretrial detention." United States v. Byrd, 969 F.2d

106, 110 (5th Cir. 1992). In this case, the government invoked 

§ 3142(f)(1)(A), i.e. a case involving a crime of violence. One

series of photographs involves photographs of a rape of a gagged

child. 

The crime charged is 18 U.S.C. § 2252(a)(5)(B), a felony,

which is found in Chapter 110. Thus, as used in 18 U.S.C. § 3142

possession of child pornography is specifically included as a

"crime of violence". The detention hearing was appropriately

requested. 

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In accordance with Section 3142(f) of the Bail Reform Act,

18 U.S.C. §§ 3141 et seq., a hearing was conducted on February

12, 2007, for the purpose of determining whether to detain

defendant, Gene Stram, who has been indicted on one count of

possession of child pornography. 

Under 18 U.S.C. § 3142(b), a court, in making a

determination regarding detention, must evaluate the risk of the

defendant’s flight, the risk to the safety of any other person,

and the risk to the safety of the community. In circumstances

when detention is not mandated by the court, the court is

nonetheless empowered to impose conditions on release. 18 U.S.C.

§ 3142(c). 

Pursuant to the provisions of 18 U.S.C. § 3142(g) a court,

in assessing the risks noted in 18 U.S.C. § 3142(b), shall

consider the following: (1) the nature and circumstances of the

offense charged; (2) the weight of the evidence as to guilt; (3)

the history and characteristics of the accused, including family

ties, past history, financial resources and employment; and (4)

the nature and seriousness of the danger to any person or the

community that would be posed by a release.

During the course of a hearing conducted pursuant to 18

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U.S.C. § 3142, the government typically retains the burden of

persuading the court that “‘no condition or combination of

conditions will reasonably assure’ the defendant’s presence at

trial." United States v. Perez-Franco, 839 F.2d 867, 870 (1st

Cir. 1988) (quoting United States v. Palmer-Contreras, 835 F.2d

15, 17-18 (1st Cir. 1987)); United States v. Patriarca, 948 F.2d

789, 793 (1st Cir. 1991). For its part, the government is

required to offer clear and convincing evidence of dangerousness;

and a preponderance of the evidence to prove risk of flight. See

Patriarca, 948 F.2d at 792-93.

In the case at hand, the Indictment itself constitutes

probable cause to believe that the offenses charged have been

committed and that the defendant has committed them. 

Here, I find that the government has met its burden with

regard to danger to the community. Specifically, the weight of

the evidence is overwhelming. Thousands of children’s porn

photos are on his computer and he has shared them with children. 

This is a crime of violence. He is unemployed and has been. He

has shown his porn to children and plied them with alcohol. 

I am satisfied from the representations and documents

offered during the hearing that no condition or combination of

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conditions will reasonably assure the safety of the community. 

Upon full consideration of the arguments offered by the

government and defense, I am satisfied that the defendant poses a

danger to the community. 

Accordingly, it is ORDERED that the defendant be detained

pending trial.

The defendant is committed to the custody of the Attorney

General or his designated representative for confinement in a

corrections facility separate, to the extent practicable, from

persons awaiting or serving sentences or being held in custody

pending appeal. The defendant shall be afforded a reasonable

opportunity for private consultation with defense counsel. On

order of a court of the United States or on request of an

attorney for the Government, the person in charge of the

corrections facility shall deliver the defendant to the United

States Marshal for the purpose of an appearance in connection

with a court proceeding.

SO ORDERED.

______________________________

James R. Muirhead

United States Magistrate Judge

February 12, 2007

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cc: Donald Kennedy, Esq.

Helen W. Fitzgibbon, Esq.

U.S. Marshal

U.S. Probation

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