United States v. Blanchard

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Case No. 18-mj-101 (GMH)
JULIAN PHILIP BLANCHARD, Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
The defendant, Julian Philip Blanchard, has been charged by criminal complaint, with
Distribution of Child Pornography through Interstate Commerce, in violation of 18 U.S.C.
§ 2252(a)(2). Crim. Compl. at 1, ECF No. 1. Following the defendant’s arrest, on August 29,
2018, in his home state of Louisiana, the government’s motion for pretrial detention was denied
by a Magistrate Judge in the Middle District of Louisiana at a detention hearing held on
September 4, 2018. The order for pretrial release of the defendant to the third-party custody of
his parents, and other conditions, was stayed by this Court, pursuant to 18 U.S.C. § 3145(a), see
Order Granting Gov’t’s Emergency Mot. Stay Execution of Release Order, ECF No. 6, and the
defendant was ordered transported to this District, see Order Granting Gov’t’s Mot. Transport of
Def., ECF No. 9. Thereafter, based upon the evidence presented and proffered by the parties at a
detention hearing, on October 9 and 12, 2018, before this Court, the government’s motion to
detain the defendant was granted. See Min. Entry (Oct. 12, 2018). 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
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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
At the detention hearing, the government presented the testimony of Federal Bureau of
Investigation (“FBI”) Special Agent Christopher Ford, who re-affirmed the allegations in the
criminal complaint, and proffered additional evidence in support of the government’s detention
motion. In particular, as detailed in the criminal complaint, on July 6, 2018, the defendant, using
the username “jayrock985,” initiated contact with a D.C. Metropolitan Police Department
detective (“UC”), who was acting undercover as part of the MPD-FBI Child Exploitation Task
Force operating out of a local office in Washington, D.C. Crim. Compl., Statement of Facts
(“SOF”), at 1, ECF No. 1-1.1 The defendant contacted the UC at a KIK account that the UC had
posted on an anonymous website along with a message soliciting contact with persons interested
in incest and “watching really yng today.” Id. KIK is a free instant messaging mobile
application that supports the transmission and receipt of multi-media content between individual
users and in group chat rooms. Id. at 1 n.1. Between July 6 and July 10, 2018, the defendant
engaged in private KIK chats with the UC, in the course of which the defendant sent to the UC:
(1) a link to a site with dozens of files of child erotica, id. at 2; and (2) three videos of child
pornography showing an infant, a toddler and prepubescent girl being sexually abused,
respectively, id. at 3, 4.
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The FBI was able to confirm the defendant’s identity as the KIK user “jayrock985.” SOF at 6. The
defendant has not disputed his identification as the person communicating with the UC.
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On July 6, 2018, while also chatting privately on KIK with the UC, the defendant invited
the UC to a private KIK group called “Pedos Only,” where users were trading child
pornography. Id. at 3. Several days later, on July 9, 2018, the defendant posted to the Pedos
Only site, the same child pornography video showing the toddler previously sent to the UC, id. at
5, and, on July 11 and 12, 2018, the defendant invited three other users to this same private KIK
chat. Id. The other users of the Pedos Only site distributed a combination of links to and/or
images of child pornography to other users of the site. Id.
At the time of the defendant’s arrest, he was in possession of various electronic devices,
including an iPhoneX and a Nokia cell phone. Forensic examination revealed that the iPhone X
had at some time had the KIK application installed, but it had been removed, and the Nokia cell
phone, which had been used between 2013 and 2015, contained about 36 stored child
pornography images.
At the detention hearing, the government provided documentation, in Gov’t’s Ex. 2,
regarding the defendant’s prior conviction in March 2009 for cyberstalking in the Parish of
Tangipahoa, Louisiana, stemming from an undercover police investigation, in which undercover
officers posed as juvenile girls in Yahoo chatrooms. According to the police report, dated
October 4, 2006, incorporated in Gov’t’s Ex. 2, in September 2006, the defendant engaged in
online explicit sexual conversations with an undercover officer, who was posing as a 15-year old
girl, during which conversations the defendant used a webcam to show himself masturbating and
arranged to meet the girl to have sexual relations. Gov’t’s Ex. 2. The defendant was arrested at
the location he had arranged for that meeting, in possession of a box of condoms. Id. Review of
the defendant’s Yahoo account showed that he “has several underage girls that he chats with”
and the defendant “also admitted to having child pornography on his computer.” Id.
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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”
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
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(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
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).
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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
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. 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
In this case, the defendant has not been indicted but, to date, charged only in a criminal
complaint with distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). Upon a
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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)(E), as “an offense
involving a minor victim under section…2252(a)(2).” 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),
Based on the evidence presented and proffered at the hearing, and the entire record, as
summarized in Part I, supra, the Court finds “a substantial chance” exists that the defendant
committed the child pornography distribution crime alleged in the criminal complaint. In brief,
the defendant initiated contact with the UC, then engaged in online private message asking
questions about the UC’s purported 6-year old daughter and sent the UC directly a link to child
erotica files, as well as child pornography images and videos. In addition, the defendant invited
the UC to join a private KIK group, where members, including the defendant, posted and made
available child pornography to each other. Finally, at the time of his arrest, the defendant
possessed one cell phone on which the KIK application had been installed and another cell phone
containing 36 child pornography images. 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.
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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
father with electronic monitoring and no Internet access. Rough Transcript of Hearing (October
12, 2018) at 16:2–10. 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 militate strongly in favor of pretrial detention.
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 toddlers and infants, to the UC
as well as multiple individuals who were members of a KIK online chat group. 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 victims to engage in sexual acts and, when
shared in online child pornography groups that essentially form communities, “validates and
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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. See 18 U.S.C. § 2252(b)(1).
The facts alleged by the government present a disturbing case of distribution of child
pornography in an online “community” in which the defendant invited and encouraged other
users to participate and distribute child pornography. To minimize the risks of further harm, the
defendant proposed, and the magistrate judge imposed, as release conditions that the defendant
reside with his father, that he not possess electronic devices, that the father password protect the
father’s own electronic devices, and that the defendant be restricted to the Eastern District of
Louisiana, where his father resides. Order Setting Conditions of Release at 2, ECF No. 11.
These conditions were intended to restrict the defendant’s access to the Internet, to mitigate the
risk of further harm to children, including his own, through the distribution of child pornography
or other sexual abuse or exploitation of children.
These release conditions are simply insufficient for several reasons. First, monitoring
compliance with the release conditions would be difficult. Indeed, the defendant possessed at the
time of his arrest multiple electronic devices, including a cell phone used over three years ago,
from 2013 to 2015. Second, even if the defendant does not technically “possess” any electronic
devices, given the plethora of ways to obtain online access at libraries and other public facilities,
the defendant may remain free within the restricted area to access the Internet. Finally, the
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defendant may also be able to access any weakly protected devices held by the defendant’s
father. 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 very strong. The
government supports the child pornography distribution charge with the defendant’s own
communications with an undercover officer, the child pornography videos and images the
defendant sent directly to the UC and also uploaded to an KIK chat group with the provocative
name “Pedos Only,” as well as the defendant’s invitations to online KIK users to join the “Pedos
Only” group. In addition, although a complete forensic analysis of the electronic devices
recovered from the defendant at the time of his arrest is not yet complete, that analysis has so far
found 36 child pornography images stored on the defendant’s Nokia phone and confirmed that
the KIK application, which was used to communicate with the UC and the Pedos Only KIK site,
had been installed on the defendant’s iPhoneX. 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’s communications with the UC reflect his interest in child
pornography and incest, since the UC message that prompted the defendant to initiate contact
with the UC read “Incest dad at home with niece and daughter today…any other dads in the
same boat? Or any others watching really yng today?” SOF at 1. In their first conversation, the
defendant identified himself as a dad and asked the UC for “Pics?” of the UC’s purported
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daughter. Id. at 3. During the subsequent conversations with the UC, as noted, the defendant
sent child pornography images and videos. In this context, the fact that the defendant is a father
to two small children raises significant concern. Although the magistrate judge imposed release
conditions that would remove the defendant from his residence, the order is not clear that the
defendant would be required to stay away from his children without supervision. Even if that
stay-away restriction were clearly imposed, enforcing that restriction may pose significant
challenges since the defendant’s third-party custodian would be none other than his children’s
grandfather.
In any event, the most troubling aspect of the defendant’s background is his criminal
history of engaging and attempting to engage in analogous criminal sexual conduct with minor
juveniles, with whom he communicated online. Specifically, according to the police description
of the conduct underlying the defendant’s 2009 cyberstalking conviction, the defendant
communicated with a person he believed to be, and with actual, underage girls in online chats,
including with webcam sessions involving sexual conduct. The defendant was arrested in 2006
when he drove for over two hours with the plan to have physical sexual relations with a person
he believed to be an underage girl. Gov’t’s Ex. 2. This criminal conduct in 2006, resulting in a
criminal conviction in 2009, is compounded by the fact that the defendant possessed 36 child
pornography images on a cell phone used between 2013 and 2015. This course of conduct over
the past twelve years leaves the Court with no confidence that defendant will not re-offend were
he released.
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
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heavily against release. As discussed in Part III.1, supra, 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 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 evidence proffered and presented 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 continued detention 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.
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Date: October 15, 2018
______________________
BERYL A. HOWELL
Chief Judge
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