United States v. Downs

• Decision Date: 09 August 2019
• Docket Number: Case No.: 5:19-cr-39-TKW
• Parties: UNITED STATES of America v. Clark DOWNS
• Court: U.S. District Court — Northern District of Florida

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UNITED STATES of America
v.
Clark DOWNS

Case No.: 5:19-cr-39-TKW

United States District Court, N.D. Florida, Panama City Division.

Signed August 9, 2019

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Michelle Kathleen Daffin, Northern District of Florida, Panama City, FL, for United States of America.

ORDER OF DETENTION PENDING TRIAL

Michael J. Frank, United States Magistrate Judge

On August 8, 2019, this court conducted a detention hearing pursuant to the Bail Reform Act of 1984, as amended, 18 U.S.C. § 3141, et seq. Based upon the information contained in the Pretrial Services report, the evidence presented at the hearing, the statutory presumption of dangerousness, the description of the child pornography submitted by the government, and the arguments of counsel, this court finds that the Defendant must be detained pending trial because no condition or combination of conditions reasonably will assure the safety of two victims and other members of the community.

Part I —Eligibility for Detention

To safeguard members of the community, defendants charged with criminal offenses "legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence ...." Bell v. Wolfish , 441 U.S. 520, 523, 99 S. Ct. 1861, 1865, 60 L.Ed.2d 447 (1979) ; see 18 U.S.C. § 3142(a). To detain a defendant prior to trial, however, "the Government must comply with constitutional requirements ... and any applicable statutory provisions." Bell , 441 U.S. at 534 n.15, 99 S. Ct. at 1871 n.15.

In this case, under the Bail Reform Act of 1984, as amended, the Defendant is eligible for detention because he has been

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charged by a grand jury with a crime of violence. See 18 U.S.C. § 3142(f)(1)(A) (authorizing detention of defendants charged with crimes of violence); 18 U.S.C. § 3156(a) (defining the term "crime of violence" to include "any felony" under chapter 110). Specifically, he has been charged with Production of Child Pornography, in violation of 18 U.S.C. § 2251(a) & (c), and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b) & (b)(2). These offenses are found within chapter 110 of Title 18.

Part II —Standard

"The Bail Reform Act of 1984 provides a federal court with two choices when dealing with a criminal defendant who has been ‘charged with an offense’ and is awaiting trial ...." Reno v. Koray , 515 U.S. 50, 57, 115 S. Ct. 2021, 2025, 132 L.Ed.2d 46 (1995). A court may either release a defendant on appropriate conditions or detain the defendant. Id. In determining whether detention is appropriate, courts must keep in mind that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno , 481 U.S. 739, 755, 107 S. Ct. 2095, 2105, 95 L.Ed.2d 697 (1987). The policy of the Bail Reform Act of 1984 "is to permit release under the least restrictive condition compatible with assuring the future appearance of the defendant" and the safety of the community. United States v. Price , 773 F.2d 1526, 1528 (11th Cir. 1985) (per curiam).

"A criminal defendant must be released before trial on personal recognizance or upon execution of an unsecured bond, unless the court determines that release will not reasonably ensure his appearance or will endanger the safety of others." Taylor v. Pekerol , 760 F. App'x 647, 653 (11th Cir. 2019) (citing 18 U.S.C. § 3142(b) ). On the other hand, a defendant must be detained pending trial if he presents a serious risk of flight or poses a danger to another person or members of the community. Salerno , 481 U.S. at 749, 107 S. Ct. at 2102 ; see United States v. Montalvo-Murillo , 495 U.S. 711, 717, 110 S. Ct. 2072, 2077, 109 L.Ed.2d 720 (1990) (noting that the Bail Reform Act "directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight"). Before detaining a defendant pending trial, however, the Government must establish by a preponderance of the evidence that a defendant poses a serious risk of flight, or show by clear and convincing evidence that he is a danger to another person or the community. See Salerno , 481 U.S. at 750, 107 S. Ct. at 2103 ; United States v. Quartermaine , 913 F.2d 910, 917 (11th Cir. 1990) ; United States v. King , 849 F.2d 485, 488-89 (11th Cir. 1988) ; United States v. Medina , 775 F.2d 1398, 1402 (11th Cir. 1985).

It is important to note that the term "danger to the community" was "not meant to refer only to the risk of physical violence." United States v. Tortora , 922 F.2d 880, 884 (1st Cir. 1990). Safety of the community under § 3142(e) is not limited to the danger of physical violence, but "refers to the danger that the defendant might engage in criminal activity to the detriment of the community." United States v. Cook , 880 F.2d 1158, 1161 (10th Cir. 1989) ; United States v. Abdullahu , 488 F. Supp.2d 433, 438-39 (D. N.J. 2007) (noting that "danger to the community does not only include physical harm or violent behavior"); United States v. Gibson , 481 F. Supp.2d 419, 423 (W.D. Pa. 2007) (noting that "violence is not the only danger to the community this court must consider").

Clear and convincing evidence of dangerousness exists when the evidence induces "an abiding conviction that the truth of its factual contentions are ‘highly probable.’ "

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Colorado v. New Mexico , 467 U.S. 310, 316, 104 S. Ct. 2433, 2437-38, 81 L.Ed.2d 247 (1984). "Clear and convincing evidence" entails more than a preponderance of the evidence, but less than evidence establishing a fact beyond a reasonable doubt. Addington v. Texas , 441 U.S. 418, 423-25, 99 S. Ct. 1804, 1808-09, 60 L.Ed.2d 323 (1979). Accordingly, to show by clear and convincing evidence that a defendant poses a danger to the community, the United States need not prove that there is a 100% chance that the defendant will commit harmful acts. Rather, the concept of danger entails probability of harm and, thus, demonstrating a substantial risk of harm is sufficient. United States v. Shea , 749 F. Supp. 1162, 1167 (D. Mass. 1990) ("The term ‘danger’ invokes a concept of probability (commonly referred to as risk of harm) rather than certainty of harm.").

As discussed above, if the government satisfies its burden of demonstrating dangerousness, the Bail Reform Act requires the detention of a defendant. Montalvo-Murillo , 495 U.S. at 717, 110 S. Ct. at 2077 ("The Act ... requires pretrial detention of certain persons charged with federal crimes and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight."); United States v. Smith , 79 F.3d 1208, 1209 (D.C. Cir. 1996) ("The Bail Reform Act requires that a defendant be detained prior to trial if there is clear and convincing evidence that no conditions placed upon his release would reasonably assure the safety of the community."). A defendant may be detained based either on the risk of nonappearance or his dangerousness; the government is not required to establish both. United States v. King , 849 F.2d 485, 488-89 (11th Cir. 1988).

Part III —The Presumption of Danger to the Community

Because the grand jury charged the Defendant with Production of Child Pornography, in violation of 18 U.S.C. §§ 2251(a) & (c), and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(b) & (b)(2), there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of the community. See 18 U.S.C. § 3142(e)(3)(E) ; United States v. Bess , 678 F. Supp. 929, 934 (D.D.C. 1988) (explaining that the presumption "represents Congress's general factual view about ... the special risks of danger to the community presented by defendants who commit the crimes to which it attaches"). In "order to trigger section 3142(e)'s rebuttable presumption, the government need not make a showing of probable cause independent of the grand jury's indictment." King , 849 F.2d at 487-88 ; United States v. Vargas , 804 F.2d 157, 163 (1st Cir. 1986) ; United States v. Hurtado , 779 F.2d 1467, 1479 (11th Cir. 1985).

In light of the statutory presumption, the Defendant bears the burden of producing evidence to rebut the presumption. See United States v. Stricklin , 932 F.2d 1353, 1354 (10th Cir. 1991) (per curiam). "Once the presumption arises, the ball is in the defendant's court, ... and it is incumbent on the defendant to come forward with some evidence to rebut the presumption." Cook , 880 F.2d at 1162 ; see Quartermaine , 913 F.2d at 916 ("Once the statutory presumptions are raised, the defendant carries the burden of production to come forward with evidence to rebut the presumptions."). Specifically, a defendant has the burden of producing evidence demonstrating that he is not a danger to the community. Quartermaine , 913 F.2d at 916 ; Hurtado , 779 F.2d at 1479. "In a presumption case such as this, a defendant

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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 ...." United...