The opinion of the court was delivered by: John D. Bates United States District Judge
MEMORANDUM OPINION AND ORDER
The defendant was arrested on March 1, 2011 and has been in custody since that date. He has now been indicted on one count of travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C § 2423(b). The government moved to detain the defendant without bail pending trial. A magistrate judge denied the motion, but ordered that the defendant be held without bail pending an order containing release conditions. On October 26, 2011, the magistrate judge ordered that the defendant be released on 24-hour home detention at his grandmother's home in Puerto Rico. The government then promptly [Docket Entry 28] moved to revoke the magistrate judge's order denying pre-trial detention without bail and moved for a stay of the magistrate judge's release order pending resolution of the revocation motion.
On October 27, 2011, this Court held a hearing regarding the motion and, following the hearing and the defendant's request for a continuance, granted the government's motion for a stay pending resolution of the revocation motion [Docket Entry 34]. On November 3, 2011, the Court held an additional hearing on the revocation motion. For the reasons expressed below, the Court will now grant the government's motion to revoke the magistrate judge's order denying pre-trial detention without bail. The defendant shall be held without bail.
A judicial officer must order the detention of a person charged with an offense if, after a detention hearing, "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." 18 U.S.C. § 3142(e)(1). "Subject 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 . . . an offense involving a minor victim under [18 U.S.C. § 2423]." Id. § 3142(e)(3).
In determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, the judicial officer must consider four factors: (1) the nature and circumstances of the offense charged, including whether the offense involves a minor victim; (2) the weight of the 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 (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. Id. § 3142(g).
"The facts the judicial officer uses to support a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community must be supported by clear and convincing evidence." Id. § 3142(f). On the other hand, the level of proof required to establish risk of flight is "the preponderance of the evidence." United States v. Vortis, 785 F.2d 327, 328 (D.C. Cir. 1986) (per curiam); accord United States v. Saani, 293 Fed. Appx. 1 (D.C. Cir. 2008) (unpublished decision). Both the government and the defendant may offer evidence or proceed by proffer. United States v. Smith, 79 F.3d 1208, 1209-1210 (D.C. Cir. 1996).
Finally, "[i]f a person is ordered released by a magistrate judge, . . . the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release." Id. § 3145(a). The Court's review of the magistrate judge's determination is generally considered de novo. See United States v. Hudspeth, 143 F. Supp. 2d 32, 35-36 (D.D.C. 2001) (citing cases); see also Def.'s Supplemental Mem. [Docket Entry 39], at 1.
II. Probable Cause and Presumption
In this case, the government has provided evidence of an Internet chat, telephonic communication, and text messages between the defendant and an undercover detective of the Metropolitan Police Department. See Mot. for Emergency Stay and for Review and Appeal [Docket Entry 28], at 2-3. The defendant has not contested that these communications included an agreement to meet in person, as well as discussion that the defendant would have sex with a twelve year-old boy. See Def.'s Mem. [Docket Entry 37], at 2-3. Nor has the defendant contested a communication in which the undercover detective discussed bringing the boy to a meeting with the defendant and asked the defendant "if you were cool with him fucking you or would you rather fuck him," to which the defendant responded, "I'd probably be more comfortable fucking him." See id. at 3. Finally, the defendant has not contested that he did travel from Virginia and arrive for the meeting in the District of Columbia. Id.
The defendant has been charged with an offense involving a minor victim. On the basis of the uncontested evidence, the Court finds that there is probable cause to believe that the defendant committed this offense. Accordingly, there is a rebuttable presumption that no conditions will reasonably assure the appearance of the defendant as required and the safety of the community.
With respect to the four factors for determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community, the magistrate judge stated that she "very carefully considered the full extent of the evidence offered and proferred." Tr. of Arraignment and Detention Hr'g Before the Hon. Deborah A. Robinson, Part 2 ("Tr. Part 2"), at 40. The magistrate judge indicated that she focused primarily on "the nature and circumstances of the offense charged and the weight of the evidence." Id. The magistrate judge stated that the defendant's clear intent to commit the crime was undermined by the fact that the website on which the defendant encountered the undercover detective was frequented by adult men and that users know that they can be kicked off the site for talking about having sexual encounters with minors. Id. at 41; see also Tr. of Arraignment and Detention Hr'g Before the Hon. Deborah A. Robinson, Part 1 ("Tr. Part 1"), at 23-24. The magistrate judge noted that nothing on the defendant's online profile suggested that the defendant was interested in sex with children and that the defendant did not make inquiries regarding a child. Tr. Part 2, at 41-42; see also Tr. Part 1, at 31-39, 55-56. The magistrate judge also stated that she relied on testimony from the undercover detective that it is "possible" that the defendant could have been waiting until the child left before the defendant arrived at the scene and testimony that the defendant's intent was "ambiguous." Tr. Part 2, at 42; see also Tr. Part 1 at 47.
With respect to the nature and circumstances of the offense, the charged offense is serious and involved traveling with intent to have sex with a twelve year-old minor victim. The Court finds that this factor supports detaining the defendant; ...