United States v. Galarza ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Case No. 18-mj-146 (RMM)
VINCENT GALARZA, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
The government has appealed a Magistrate Judge decision denying the government’s
motion for pretrial detention of the defendant, Vincent Galarza, who has been charged by
criminal complaint, with knowingly conspiring to Distribute Child Pornography through
Interstate Commerce, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1), Crim. Compl. at 1, ECF
No. 1, based on evidence that the defendant, from approximately June 25, 2016 to December 21,
2016, uploaded more than 500 videos depicting child pornography to, and from approximately
May 31, 2017 to February 9, 2018, downloaded approximately 174 videos from, a website (“the
CP Website”), which was hosted overseas “as a hidden service on the Tor network” and
“dedicated to the advertisement and distribution of child pornography,” Aff. Supp. Crim. Compl.
and Arrest Warrant (“Franklin Aff.”) at 3, 6, ECF No. 1-1.1 This is the government’s second
attempt to have the defendant detained pending trial. The government’s first effort was based on
information contained in the criminal complaint detailing the defendant’s distribution of child
pornography; the second unsuccessful request for detention, giving rise to the instant appeal, is
1
While the name of the website is known to law enforcement, this information has not been disclosed to
avoid alerting “users to the fact that law enforcement action is being taken against users of” the site and to minimize
the risk of “provoking users to notify other users of law enforcement action, flee, and/or destroy evidence.” Franklin
Aff. at 1 n.1.
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based on additional evidence that the government has only recently discovered, namely, that the
defendant surreptitiously recorded a minor in her bathroom and bedroom, used those recordings
in an attempt to extort her for additional videos, crawled into bed with the same minor on
multiple occasions when she was 12 years old, and has threatened to rape the minor’s adult
sister, while holding a pellet gun. Gov’t’s Mot. for Review and App. of Release Order (“Gov’t’s
Mot.”) at 9–13, ECF No. 18.
This Memorandum Opinion sets out the findings and reasons for detention. See 18
U.S.C. § 3142(i)(1) (requiring that a detention order “include written findings of fact and a
written statement of the reasons for the detention”); see also United States v. Nwokoro, 651 F.3d
108, 109 (D.C. Cir. 2011) (noting that the Bail Reform Act requires pretrial detention order be
supported by “a clear and legally sufficient basis for the court’s determination” in written
findings of fact and a written statement of the reasons for the detention or in “the transcription of
a detention hearing” (quoting United States v. Peralta, 849 F.2d 625, 626 (D.C. Cir. 1988))) (per
curiam).
I. BACKGROUND AND FINDINGS
Following the defendant’s arrest, on December 11, 2018, in the Eastern District of New
York, the government’s motion for pretrial detention was denied by a Magistrate Judge in that
district at a detention hearing held the same day. Gov’t’s Mot. at 1. The government did not
appeal. Id. Then, on December 19, 2018, the defendant appeared before a Magistrate Judge in
this district, where the charges arose, and the defendant was again released, with the
government’s consent, on the same release conditions previously imposed in the Eastern District
of New York, which conditions included that the defendant was restricted to home detention at
his parent’s house, with location monitoring, and no travel outside New York City or
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Washington, D.C. without Court approval, and that he not have contact with any minor or use
any device with internet access, along with execution of a $200,000 bond secured by real
property. Order Setting Conditions of Release at 2, ECF No. 6. Minute Entry (Dec. 19, 2018);
Order (Dec. 28, 2018), ECF No. 10. During the ensuing five months, the defendant agreed to
exclude time under the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A), see, e.g., Minute Entry
(Dec. 19, 2018); Order (March 20, 2019); Minute Entry (May 3, 2019), and the government
continued its investigation. Specifically, the government conducted forensic examinations of
both the server that hosted the CP Website after the server was seized by South Korean law
enforcement and the defendant’s electronic devices, which included a self-built computer
consisting of multiple hard drives in a RAID (Redundant Array of Independent Disks)
configuration and was lawfully seized pursuant to a search warrant at the time of the defendant’s
arrest. Due to the complex “electronic configurations” of the defendant’s computer, “it took law
enforcement considerable time to forensically extract and review the approximately 1.7 million
images and videos recovered from the device” and “to override the defendant’s password,”
Gov’t’s Mot. at 10.
The government’s investigation uncovered evidence of additional criminal conduct by the
defendant, prompting the government to seek reconsideration of pretrial detention. See Gov’t’s
Mot. Reconsider Def.’s Bond Status, ECF No. 12. On May 3, 2019, the Magistrate Judge denied
the government’s motion and continued the defendant on pretrial release, after imposing the
additional conditions that the defendant have no contact with witnesses and not receive any
visitor who is in possession of any device with internet access. See Order Denying Gov’t’s Mot.
for Reconsideration and Modifying Conditions of Release to Add Additional Conditions, ECF
No. 17. The government’s filed an appeal of the release order, on May 5, 2019, Gov’t’s Mot. at
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1, and a further detention hearing was held by this Court on May 7, 2019, Minute Entry (May 7,
2019).
At the most recent detention hearing, the government relied, as support for seeking the
defendant’s pretrial detention, on both the factual proffer set out in the criminal complaint, as
well as a summary of the new evidence obtained by the government through forensic analysis of
seized electronic devices, and witness interviews.
The multiple steps that the defendant took, over many months, as user “thisthishold,” in
order to access child pornography content on the CP Website, is indicative of his overall
commitment to distribution of child pornography. The website was a Tor network-based child
pornography website, meaning it anonymized Internet activity “by routing user’s
communications through a global network of relay computers (or proxies), thus effectively
masking the internet-protocol (“IP”) address of the user.” Franklin Aff. at 2. Thus, to access the
CP Website, the user had to install Tor software, “which relays only the IP address of the last
relay computer (the “exit node”), as opposed to the user’s actual IP address.” Id. Then, to
download content from the CP Website, users had essentially had to pay in “points,” which could
be earned in various ways, including, as relevant here, uploading videos depicting child
pornography, or paying for points with bitcoin (“BTC”). Id. at 3–4. A user earned additional
points when other users of the CP Website downloaded a user’s videos. The website “operated a
digital hash-value check of videos uploaded to the CP Website” to ensure that any videos
uploaded were unique compared to other videos on the site, id. at 4, thereby ensuring that users
only received points for uploading child pornography not already on the website. Thus, when
the defendant uploaded more than 500 videos between approximately June 25, 2016 and
December 21, 2016, id. at 6, he was likely accruing points on the CP Website to use for future
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downloads. Indeed, following the period when the defendant uploaded all the videos to the CP
website, he then, between approximately May 31, 2017 and February 9, 2018, downloaded
approximately 174 videos of child pornography from the CP Website. The CP Website also
allowed users to purchase a “VIP” account using BTC, id. at 3, which the government believes
the defendant to have done, on December 17, 2016, id. at 5–6 n.5.
After law enforcement seized the website’s server in South Korea, they were able to pull
back the veil of anonymity in which the website’s users had hidden their activities. As relevant
here, a forensic image of the server “revealed a transfer of approximately 0.00228809 BTC
(worth about $1.80 at the time of transaction) on December 17, 2016 from a BTC address to [the
CP] Website’s BTC address starting with 1Hrb.” Id. at 5. Law enforcement subpoenaed a
virtual-currency exchange in the United States, which is required by U.S. law to collect
identifying information on its customers, and learned that the BTC transfer starting with 1Hrb
was from a BTC Exchange Account number starting with 5855, which was created on or about
December 17, 2016 and registered in the name of the defendant, using the defendant’s confirmed
phone number and email address. Moreover, the BTC Exchange Account was funded by a
checking account and credit card account registered in the defendant’s name. Thus, the
government has provided compelling evidence that the website user who uploaded and
downloaded child pornography to and from the CP Website is the defendant.
The defendant’s use of the CP Website was confirmed upon forensic examination of his
own computer, which contained “at least two videos that thisthishold uploaded to” the CP
Website. Gov’t’s Mot. at 10. This computer also contained over 500 videos and images of child
pornography, most of which depicted sexually explicit conduct of pre-pubescent children. Id.
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Among the videos recovered from the defendant’s computer were eleven videos of the 14-year
old younger sister (“Cooperating Witness” or “CW1”) of the defendant’s former girlfriend
(“W2”).
Upon subsequent investigation, the government learned that the defendant had
surreptitiously produced the child pornography of CW1 from two hidden cameras during the six-
month period of March to August 2014. The defendant’s own face was recorded on at least two
occasions as he covertly set up, and later adjusted the angle of, a camera hidden in the CW1’s
bathroom, to secretly record CW1, as she undressed and used the shower. Gov’t’s Mot. at 10.
These videos had been edits and clipped to produce over 900 still-shot images focusing on
CW1’s “genitalia and pubic area.” Id. at 11.
In addition, forensic examination of the defendant’s computer has revealed that the
defendant hacked into the computer in CW1’s bedroom and remotely activated her web camera
to record her in various stages of undress. Id. at 12. As confirmed by CW1 during an interview
on April 29, 2019, the defendant used one of the images he obtained of CW1 in her bedroom
with her breasts exposed to extort CW1, threatening to release a nude photo of CW1 unless she
shared more images or videos with the defendant. Id. at 12. Forensic examination of the
defendant’s computer uncovered this image of CW1 with the word written on it “to the effect of
‘show me more vids or I’ll show everyone.’” Id. “Thereafter, CW1 immediately dismantled her
web camera and got a new computer.” Id.
In addition to this attempted extortion, CW1 told law enforcement that beginning in
2012, when she was just 12 years old, she began locking her bedroom door because the
defendant would get into her bed while she was sleeping, and on multiple occasions, starting
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when she was approximately 11 years old, the defendant touched her on the buttocks
inappropriately when walking past her. Id. at 11–12.
The defendant’s former girlfriend, W2, who as noted is the older sister of CW1, has
advised law enforcement of an incident in which the defendant, on January 1, 2016, entered the
bedroom of W2’s adult sister (“W3”), who was asleep. Id. at 13. W3 woke up to find the
defendant standing naked next to her bed and holding a pellet gun to her head and threatening to
rape W3. W3 filed a police report about the incident, which for unknown reasons remains
sealed. Id. While W3 has not yet been interviewed, both CW1 and W2 corroborate this story.
Id.
Based on these incidents with CW1 and W3, the government posits that the defendant has
not only distributed and produced child pornography but also “shown a willingness to engage in
hands-on sexual abuse.” Rough Transcript of Hearing (May 7, 2019) (“H’rg Tr. (Rough)”) at
4:23–24.
II. LEGAL STANDARD
The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., provides that “a person awaiting
trial on a federal offense may either be released on personal recognizance or bond, conditionally
released, or detained,” and “establishes procedures for each form of release, as well as for
temporary and pretrial detention.” United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999)
(citing 18 U.S.C. § 3142(a)). The court is required, under 18 U.S.C. § 3142(f)(1), to hold a
pretrial detention hearing, upon the government’s motion for detention, before releasing any
defendant charged with certain serious crimes, including “a crime of violence,” which is defined
to include “any felony under chapter . . . 110.” 18 U.S.C. § 3156(a)(4)(C). A judicial officer
“shall order” a defendant’s detention before trial, id. § 3142(e)(1), if, after the detention hearing
held under Section 3142(f), and consideration of “the available information concerning”
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enumerated factors, id. § 3142(g), “the judicial officer finds that no condition or combination of
conditions will reasonably assure the appearance of the person as required and the safety of any
other person and the community,” id. § 3142(e)(1). The facts used to support this finding “shall
be supported by clear and convincing evidence.” Id. § 3142(f). Even if the defendant does not
pose a flight risk, danger to the community alone is sufficient reason to order pretrial detention.
United States v. Salerno, 481 U.S. 739, 755 (1987).
When a defendant is charged with enumerated offenses described in Sections 3142(e)(2),
(e)(3) and (f)(1), “[s]ubject 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” such an offense. 18 U.S.C. § 3142(e)(3). Once a rebuttable
presumption is triggered, the defendant bears the burden of production “to offer some credible
evidence contrary to the statutory presumption,” United States v. Alatishe, 768 F.2d 364, 371
(D.C. Cir. 1985), while the ultimate burden of persuasion remains with the government, see
United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008); see also United States v. Abad, 350
F.3d 793, 797 (8th Cir. 2003) (“In a presumption case such as this, a defendant bears a
limited burden of production—not a burden of persuasion—to rebut that presumption by coming
forward with evidence he does not pose a danger to the community or a risk of flight.” (quoting
United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)); United States v. Dominguez, 783
F.2d 702, 707 (7th Cir. 1986) (noting that the burden remains with the government to persuade
the court that the defendant is a danger or poses a risk of non-appearance). The defendant is not
required to rebut the presumption that the criminal activity is dangerous, or even to rebut the
judicial finding as to probable cause, but only to “meet[] a ‘burden of production’ by coming
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forward with some evidence that he will not flee or endanger the community if released.”
Dominguez, 783 F.2d at 707.
The judicial officer considering the propriety of pretrial detention must consider four
factors:
(1) the nature and circumstances of the offense charged, including whether the offense is
a crime of violence, . . . or involves a minor victim . . .;
(2) the weight of evidence against the person;
(3) the history and characteristics of the person, including . . . the person’s character,
physical and mental condition, 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 at court
proceedings; and . . . whether, at the time of the current offense or arrest, the person
was on probation, on parole, or on other release pending trial, sentencing, appeal, or
completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would
be posed by the person’s release.
18 U.S.C. § 3142(g). At the detention hearing, both the government and the defendant may offer
evidence or proceed by proffer. United States v. Smith, 79 F.3d 1208, 1209–10 (D.C. Cir. 1996).
The standard of review for review of a magistrate judge’s order for release is de novo,
and a district judge conducting that review must “promptly,” 18 U.S.C. § 3145(a), make an
independent determination whether conditions of release exist that will reasonably assure the
defendant’s appearance in court or the safety of any other person or the community, pursuant to
Section 3142(e)(1). See 28 U.S.C. § 636(a)(2) (authorizing magistrate judges to “issue orders
pursuant to section 3142 of title 18 concerning release or detention of persons pending trial”); id.
§ 636(b)(4) (directing “[e]ach district court shall establish rules pursuant to which magistrate
judges shall discharge their duties”); D.D.C. CRIM. R. 59.3(a) & (b) (providing that a magistrate
judge’s order issued “in a criminal matter not assigned to a district judge” and “for which review
is requested in accordance with this Rule may be accepted, modified, set aside, or recommitted to
the magistrate judge with instructions, after de novo review by the Chief Judge.”); see also
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United States v. Henry, 280 F. Supp. 3d 125, 128 (D.D.C. 2017) (“The Court reviews de novo
whether there are conditions of release that will reasonably assure the safety of any other person
and the community.”); United States v. Hunt, 240 F. Supp. 3d 128, 132–33 (D.D.C. 2017)
(noting that “although the D.C. Circuit has not yet addressed the issue, the many circuits that
have agree that the district judge should review de novo a detention decision rendered by a
Magistrate Judge”) (collecting cases). “The Court is free to use in its analysis any evidence or
reasons relied on by the magistrate judge, but it may also hear additional evidence and rely on its
own reasons.” United States v. Blanchard, No. 18-mj-101 (GMH), 2018 U.S. Dist. LEXIS
176510, *9 (D.D.C. Oct. 15, 2018) (quoting United States v. Hubbard, 962 F. Supp. 2d 212, 215
(D.D.C. 2013) (quoting United States v. Sheffield, 799 F. Supp. 2d 18, 20 (D.D.C. 2011))).
III. DISCUSSION
The defendant has not been indicted but, to date, charged only in a criminal complaint
with conspiring to distribute child pornography, in violation of 18 U.S.C. § 2252(a)(2). Upon a
finding of probable cause to believe the defendant committed the charged offense, this is a type
of offense that triggers the rebuttable presumption, under Section 3142(e)(3), “that no condition
or combination of conditions will reasonably assure the appearance of the person as required and
the safety of the community.” See 18 U.S.C. §3142(e)(3)(E) (including among enumerated
offenses that trigger rebuttable presumption, “an offense involving a minor victim under section .
. . 2252(a)(2)”). “In common parlance, the relevant inquiry is whether the defendant is a ‘flight
risk’ or a ‘danger to the community.’” United States v. Vasquez-Benitez, Nos. 18-3076,
Consolidated with 18-3080, 2019 U.S. App. LEXIS 8966, at *7 (D.C. Cir. Mar. 26, 2019). Here,
the government invokes the rebuttable presumption based on the defendant’s danger to the
community.
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In evaluating probable cause, courts use a “flexible, common-sense standard,” Florida v.
Harris, 568 U.S. 237, 240 (2013) (quoting Illinois v. Gates, 462 U.S. 213, 239 (1983)), requiring
consideration of the “totality of the circumstances,” id. at 244. As the Supreme Court recently
emphasized, “[p]robable cause ‘turn[s] on the assessment of probabilities in particular factual
contexts’ and cannot be ‘reduced to a neat set of legal rules.’” District of Columbia v. Wesby,
138 S. Ct. 577, 590 (2018) (quoting Gates, 462 U.S. at 232). A showing of probable cause “is
not a high bar” and “requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity.” Id. at 586 (quoting Gates, 462 U.S. at 243 n.13).
A. Finding of Probable Cause That Defendant Committed Offense Triggering
Rebuttable Presumption
Based on the evidence presented and proffered at the hearing, and the entire record, as
summarized, supra in Part I, the Court finds more than “a substantial chance” exists that the
defendant committed the child pornography distribution crime alleged in the criminal complaint.
In brief, the defendant downloaded approximately 174 videos with file names and descriptions
indicative of child pornography from, and uploaded more than 500 videos and images of child
pornography to, the CP Website. Moreover, the defendant produced child pornography by
secretly recording his then-girlfriend’s minor younger sister, CW1, between March and August
2014, by installing a camera in her bathroom, and by capturing images from a web camera
installed in CW1’s bedroom. Finally, the defendant attempted to “sextort” CW1 by threatening
to release a surreptitiously-recorded nude image of CW1 unless she shared more such images
with the defendant. Accordingly, in light of the finding of probable cause to believe that the
defendant committed the charged offense, the rebuttable presumption under Section
3142(e)(3)(E) is triggered here.
B. Consideration of Factors Under 18 U.S.C. § 3142(g)
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The next task is determining whether the defendant has rebutted the presumption of
pretrial detention by showing any condition or combination of conditions of release that will
reasonably assure the appearance of the defendant as required and the safety of any other person
and the community. In this regard, the defendant urges that he be released to the custody of his
parents with continued electronic monitoring and no access to internet-connected electronic
devices. The sufficiency of these proposed release conditions is addressed as part of
consideration of the four factors, under 18 U.S.C. § 3142(g). On the current record, these factors
overwhelmingly favor pretrial detention and show that not even the stringent release conditions
imposed by the Magistrate Judge can reasonably assure the safety of the community.
1. Nature and Circumstances of the Charged Offense
The first factor, the nature and circumstances of the charged offense, favors detention,
since the charged offense is extremely serious as it involves the distribution of child pornography
depicting the sexual abuse of minor victims, including in this case pre-pubescent children, the
production of child pornography, the extortion of a minor child in order to obtain additional
images, and hands-on sexual predation. Child pornography depicts pictorial evidence of physical
sex abuse against and exploitation of children and the production and distribution of such
contraband carries a multitude of harms. Child pornography victims “are harmed initially during
the production of images, and the perpetual nature of child pornography distribution on the
Internet causes significant additional harm to victims,” and “live with persistent concern over
who has seen images of their sexual abuse” and how those images are being used to cause
additional harm. U.S. SENT’G COMM’N, FEDERAL CHILD PORNOGRAPHY OFFENSES (Dec. 2012)
at vii (available at https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-
and-reports/sex-offense-topics/201212-federal-child-pornography-
offenses/Full_Report_to_Congress.pdf). Child pornography is used to “groom” other underage
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victims to engage in sexual acts and, when shared in online child pornography groups that
essentially form communities, “validates and normalizes the sexual abuse of children” and
“contribute[s] to the further production of child pornography and, in the process, to the sexual
abuse of children.” Id. As Congress found in enacting the Child Pornography Prevention Act of
1996, “the existence of and traffic in child pornographic images creates the potential for many
types of harm in the community and presents a clear and present danger to all children.” Pub. L.
No. 104-208, § 121, 110 Stat. 3009 (codified at 18 U.S.C. § 2251). Reflecting the seriousness of
this charge, a violation of Section 2252(a)(2) carries a minimum term of imprisonment of five
years, and up to twenty years. See 18 U.S.C. § 2252(b)(1).
The facts alleged by the government present a disturbing case. To minimize the risks of
further harm, the Magistrate Judge imposed, as release conditions, inter alia, that the defendant
be subjected to permanent home detention at his parent’s house, with location monitoring, that he
not use any device with internet access, have no contact with witnesses and not receive any
visitor in possession of any device with internet access. See Order Setting Conditions of Release
at 2, ECF No. 6; Order Modifying Conditions of Release to Add Additional Conditions, ECF No.
17. These conditions were intended to restrict the defendant’s access to the internet and to
mitigate the risk of further harm to children, through the distribution of child pornography or
other sexual abuse or exploitation of children.
These release conditions, however, even with the additional conditions imposed by the
Magistrate Judge, are simply insufficient for several reasons. First, monitoring compliance with
the release conditions would be difficult. The defendant has shown a high level of sophistication
with computers and electronic devices, making the monitoring of his compliance difficult. See
H’rg Tr. (Rough) at 8:5–11. Evidence of this sophistication includes the defendant’s building of
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his own RAID configured computer, hacking CW1’s computer to commandeer her web camera,
and the use of Tor anonymizing software and bit coin mixers to conceal his activities. See id.
Second, the defendant needs only a hand-held device to access and/or distribute child
pornography and the absence of such small devices in the defendant’s residence cannot be
meaningfully verified on a continuous basis. See id. at 8:1–5; 18:16–23. Third, the defendant
resides in the same town, Glendale, New York, where at least one of his victims also resides.
See id. at 5:14–25; 14:2–11. Finally, the defendant continues to reside with his parents, where he
was able to engage with virtual impunity for years in the underlying criminal conduct. This
history does not inspire confidence that the defendant’s parents have sufficient ability, no matter
how well intentioned, to monitor his compliance with the defendant’s conditions of release. See
id. at 18:24–19:8. Thus, the risk of re-offending looms large. In light of the dangerousness to
the most vulnerable members in our society—children—the proposed release conditions fall
short of providing reasonable assurances for the safety the community.
2. The Weight of the Evidence
The weight of the government’s evidence against defendant is compelling. The
government supports the child pornography distribution charge with an affidavit from Special
Agent Franklin detailing how a review of the defendant’s account on a website revealed
approximately 174 downloads of child pornography between May 31, 2017 and February 9,
2018, and over 500 uploads of child pornography between June 25, 2016 and December 21,
2016. Franklin Aff. at 6. The defendant’s own face was recorded on at least two occasions as he
covertly set up the camera, and later adjusted the angle of the camera, installed in the bathroom
that was subsequently used to record CW1 undressing and using the shower. Gov’t’s Mot. at 10.
Finally, CW1 verified images found on the defendant’s electronic device as images of herself,
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taken surreptitiously, and used by the defendant to attempt extortion. Gov’t’s Mot. at 11.
Therefore, the ample weight of the evidence favors detention.
3. The History and Characteristics of the Defendant
As to the third factor requiring consideration of the defendant’s history and
characteristics, the defendant, age 29, has no prior criminal history and is self-employed. Pretrial
Services Report (“PSR”) at 1, 3, ECF No. 2. Nonetheless, evidence on the record suggests that
he has committed other criminal acts posing the risk of danger to others, even beyond the
surreptitious production and distribution of child pornography, and the extortion of a minor with
those images. In an interview with law enforcement, CW1 averred that she began locking her
bedroom door when she was 12 years old because she would often awake to find the defendant
in bed with her, and that from the age of 11 the defendant would touch her on her buttocks when
walking past her. Gov’t’s Mot. at 11. Furthermore, according to the defendant’s then-girlfriend,
W2, and as corroborated by CW1, the defendant on January 1, 2016, entered W3’s bedroom
when W3, an adult, was asleep, and held a pellet gun to W3’s head, threatening to rape her. Id.
at 13. In short, the defendant’s course of conduct over a period of years, showing repeated and
varied forms of sexual predation of both minors and adults leaves the Court with no confidence
that the defendant will not reoffend if not detained.
4. The Danger to the Community
The fourth factor, the danger to the community posed by defendant, also weighs in favor
of detention since the nature of the crime charged—distribution of child pornography—weighs
heavily against release. As discussed, supra in Part III.B.1, the distribution and possession of
child pornography constitutes a danger to the community, resulting in physical and mental harm
to the children depicted, normalizing such conduct among those sharing this contraband, and
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creating a market for such contraband, and thereby encouraging the victimization of more
children. These significant harms and dangers animated the Congress to create the statutory
presumption of detention in these cases. For the aforementioned reasons, the Court believes that
the defendant presents a significant danger to the community and, given the risks posed, finds
that no condition or combination of conditions will reasonably keep the community safe were the
defendant to be released.
IV. CONCLUSION
For the foregoing reasons, upon consideration of the evidence proffered at the detention
hearing, the factors set forth in 18 U.S.C. § 3142(g), and the possible release conditions set forth
in Section 3142(c), the Court finds clear and convincing evidence that defendant’s pretrial
release would constitute an unreasonable danger to the community, and that no condition or
combination of conditions can be imposed that would reasonably ensure the safety of the
community were he to be released pending trial. Defendant has failed to rebut the presumption
in favor of pretrial detention required by Section 3142(e)(3)(E).
Accordingly, the government’s motion for review and appeal of release order is granted
and the defendant shall remain in the custody of the Attorney General for confinement pending a
final disposition in this case. An order consistent with this Memorandum Opinion and in accord
with 18 U.S.C. § 3142(i), will be entered contemporaneously.
Date: May 8, 2019
______________________
BERYL A. HOWELL
Chief Judge
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