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United States v. Johnston

United States District Court, District of Columbia

September 22, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
DAVID ALAN JOHNSTON, Defendant.

          MEMORANDUM SUPPORTING PRETRIAL RELEASE ORDER

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on a motion by Defendant David Alan Johnston (“Defendant” or “Mr. Johnston”) seeking limited pretrial release for the purpose of obtaining medical treatment for his colon cancer, and a cross-motion by the United States (“United States” or “the prosecution”) requesting that Mr. Johnston remain detained pending trial. See Motion for Limited Pretrial Release for the purpose of Obtaining Medical Treatment for His Cancer Diagnosis, ECF No. 5 (“Release Motion”); Government's Memorandum In Support of Pretrial Detention of Defendant David Johnston, ECF No. 7 (“Detention Memorandum”). Mr. Johnston has been charged by Criminal Complaint with one count of Travel With Intent to Engage in Illicit Sexual Conduct, in violation of 18 U.S.C. § 2423(b), and has been held without bond since February 1, 2017. The Court conducted multiple hearings to develop a record upon which to review the pending detention motions. As explained on the record at the conclusion of the September 21, 2017 detention hearing, the Court has reviewed the proffered evidence, the parties' arguments, and applicable law, and concludes that Mr. Johnston should be released into home detention for a twenty-one day period for the limited purpose of obtaining medical treatment.

         Factual Background

         The Court makes the following factual findings based on the proffer presented by the United States in the Criminal Complaint and at the detention hearings:

         On January 22, 2017 an individual using the username “Dave Johnston” responded to a message posted on a social media forum by an undercover officer from the Metropolitan Police Department-Federal Bureau of Investigation (“MPD-FBI”) Child Exploitation Task Force. The individual, later identified as Mr. Johnston, alluded that he had a sexual interest in minors. In the ensuing conversation, the undercover officer represented that he was the father of a nine-year-old daughter and indicated that he was sexually abusing her. Mr. Johnston responded by indicating that he previously had a sexual relationship with one of his daughters. Mr. Johnston provided the undercover officer with his username to an application called Kik, a mobile messaging application that allows users to send messages and other content, including videos and images, to other users.

         On January 26, 2017 the undercover officer began communicating with Mr. Johnston through Kik. Mr. Johnston's Kik username included his initials and the application displayed the name “Dave Johnston” in the messenger window. Mr. Johnston provided the undercover officer with other identifying personal information, such as where he lived, how old he was, how many children he had, and even his work schedule. The same day, law enforcement was able to use this information to conduct a search of a database that produced records for Mr. Johnston, including a driver's license photograph.

         On January 27, 2017 Mr. Johnston and the undercover officer continued their conversation. During this conversation, Mr. Johnston asked the officer for explicit photographs of the officer's purported daughter. The undercover officer responded that he needed a photograph of Mr. Johnston holding up two fingers as a gesture of trust. In response, Mr. Johnston sent the officer a photograph of himself that matched the driver's license photograph officers had previously obtained. After Mr. Johnston asked again for explicit photographs, the officer invited Mr. Johnston to meet him and his daughter for the purpose of engaging in sexual activity with his daughter. Mr. Johnston accepted the invitation to meet. The officer and Mr. Johnston began to make specific plans about when to meet and what the meeting would involve. For example, Mr. Johnston and the officer discussed whether Mr. Johnston had any sexually transmitted diseases, where they would meet, what specific sexual acts would occur at the meeting, and how long the meeting would take. Mr. Johnston's statements take together show a desire to go through with the meeting. On January 30, 2017, the day before the meeting, Mr. Johnston expressed excitement and anticipation about meeting the officer's daughter the following day.

         On January 31, 2017, the undercover officer and Mr. Johnston agree to meet at 1:00 P.M. at a bar in the Chinatown Neighborhood of Washington, D.C. Just before 1:00 P.M. Mr. Johnston met with the officer at the predetermined location, before continuing to the officer's purported apartment. Mr. Johnston was arrested as he and the officer were walking toward the apartment. After arrest, Mr. Johnston claimed that he never intended to engage in any sexual activity and that his actions and communications were just a fantasy. However, he admitted to traveling to Washington D.C. to meet with the undercover officer.

         Procedural Background

         The Court makes the following factual findings based upon its review of the record of this case and the proffer made by the defendant at the detention hearings:

         On February 1, 2017, Mr. Johnston was charged by Complaint with one count of Travel with Intent to Engage in Illicit Sexual Conduct in violation of 18 U.S.C. § 2423(b). See ECF No. 1. He appeared for an initial appearance the same day before Magistrate Judge G. Michael Harvey. Judge Harvey granted the United States' motion for temporary detention and ordered that Mr. Johnston be held without bond. See Feb. 1, 2017 Minute Entry. A Preliminary Hearing/Detention hearing was originally scheduled for February 6, 2017, however that hearing was continued a number of times while the parties engaged in plea negotiations. Consequently, Mr. Johnston has been continuously detained at a facility run by the District of Columbia Department of Corrections (“D.O.C.”) since his initial arrest on January 31, 2017.

         In March, Mr. Johnston began feeling ill. See Release Motion, ECF No. 5 at 3. He began having reoccurring episodes of dizziness, which were attributed to his age and a change in blood pressure medication. See id.. However on June 5, 2017, after more severe episodes of dizziness and anemia, Mr. Johnston was taken to the Emergency Room at United Medical Center. Id. at 3-4. On June 12, he was diagnosed with colon cancer. See Id. at 3. Although Mr. Johnston was originally scheduled to have a surgical procedure shortly after his diagnosis, in late June he refused the procedure in order to consult with his wife. After consulting with his wife, Mr. Johnston rejected a rescheduled oncology appointment because he believed he would be able to use his own private insurance to receive medical care. After realizing that this would not be the case, Mr. Johnston began asking D.O.C. officials to reschedule his treatment beginning on July 18, 2017. Mr. Johnston contends that he has not received any further meaningful treatment from D.O.C. since he began making those requests.

         As a result of this lapse in treatment, on September 4, 2017 Mr. Johnston filed a Motion for Limited Pretrial Release for the purpose of Obtaining Medical Treatment for His Cancer Diagnosis. See Id. Mr. Johnston argued that he was receiving insufficient medical care, id. at 3, and asked to be released into the custody of his wife, so that he could receive treatment from Mary Washington Hospital near his home in the Eastern District of Virginia (E.D.V.A.) through his own private insurance. Id. at 5. Mr. Johnston proffered that in order to facilitate his release, he would accept any conditions imposed by the Court. Id. at 6-7. Mr. Johnston attached two exhibits in support of his Release Motion: (1) a letter from his wife expressing her willingness to serve as a third-party custodian should he be released and (2) a sealed copy of select medical records that confirm his diagnosis. See Release Motion Ex. A (filed under seal at ECF No. 6); Release Motion Ex. B, ECF No. 5-2.

         The United States filed a Memorandum in Support of Pretrial Detention in which it argued that Defendant should continue to be detained because he poses a significant danger to the community and D.O.C. could provide adequate medical care. See Detention Memorandum, ECF No. 7. In support of its request for pretrial detention, the United States attached a letter from a doctor at Unity Health Care averring that D.O.C. could effectively treat Mr. Johnston's illness. See Detention Memorandum Ex. 1, ECF No. 5-1.

         The Court held a Preliminary/Detention Hearing on September 9, 2017.0F[1] Mr. Johnston waived the preliminary hearing, and after considering the parties' motions and oral arguments the Court elected to continue the detention hearing to allow the parties and pretrial services to provide supplemental information regarding, inter alia, the specifics of Mr. Johnston's medical treatment while in D.O.C. custody, the nature and timing of any treatment plans proposed by the parties, and what resources the E.D.V.A. Pretrial Services Agency could employ to supervise and monitor Mr. Johnston should he be released. At the Continued Detention Hearing held on September 13, 2017, the parties responded to the Court's questions. Additionally, the Court learned that E.D.V.A. had software capable of monitoring internet activity on devices in Mr. Johnston's home, and that E.D.V.A. could provide Mr. Johnston with a GPS tracker that would report violations to officers in real time. The Court again continued the hearing, until September 19, 2017, in order to obtain more specific information about whether E.D.V.A.'s internet monitoring capabilities could be used on multiple devices. At the Continued Detention Hearing held on September 19, 2017, the Court learned that the monitoring software could be installed on any compatible device in Mr. Johnston's home. The Court continued the hearing until September 21, 2017 so that pretrial services could determine whether the electronic devices in the Johnston family's home were compatible with E.D.V.A's computer monitoring software. The Court held its final hearing on September 21, 2017, and issued an order releasing Mr. Johnson into the custody of his wife, subject to several conditions including home detention and GPS monitoring. The United States orally moved for an emergency stay of the release order, to permit it to appeal, and the Court orally granted the stay motion.

         Legal ...


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