United States District Court, District of Columbia
MEMORANDUM SUPPORTING PRETRIAL RELEASE ORDER
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.
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
Court makes the following factual findings based on the
proffer presented by the United States in the Criminal
Complaint and at the detention hearings:
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.
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
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
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
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:
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.
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.
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.
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.
Court held a Preliminary/Detention Hearing on September 9,
2017.0F 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.