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United States v. Johnston

United States District Court, District of Columbia

September 28, 2017

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

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE.

         The defendant, David Alan Johnston, has been charged in a complaint with one count of Travel With Intent to Engage in Illicit Sexual Conduct, in violation of 18 U.S.C. § 2423(b), Compl. at 1, ECF No. 1, and has been held without bond since his arrest on February 1, 2017, Min. Entry (dated Feb. 1, 2017). Following the government's emergency appeal of a magistrate judge order releasing the defendant, see Gov't's Mot. for Emergency Stay and Review of Release Order (“Gov't's Mot.”), ECF No. 16, this Court, at a hearing on September 22, 2017, denied the defendant's motion for pretrial release, see Def.'s Mot. for Limited Pretrial Release for the Purpose of Obtaining Medical Treatment for Cancer Diagnosis (“Def.'s Mot.”), ECF No. 5; Min. Entry (dated Sept. 22, 2017). This Memorandum and Order sets out the findings and reasons for detention. See 18 U.S.C. § 3142(i) (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 a pretrial detention order be supported by “‘a clear and legally 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

         The defendant was arrested on January 31, 2017, for one count of Travel with Intent to Engage in Illicit Sexual Conduct, in violation of 18 U.S.C. § 2423(b), Compl. 1, after he had traveled to Washington, D.C. from Virginia, in accordance with a plan to meet and engage in sexual acts with a purported nine-year old girl, see Gov't's Mot. at 9-10. According to the Complaint and the government's proffer, these plans had been arranged during the course of nine days of communications that the defendant had with D.C. Metropolitan Police Detective Timothy Palchak (“UC”), who while acting in an undercover capacity as part of the Metropolitan Police Department-Federal Bureau of Investigation Child Exploitation Task Force, pretended to be the girl's father. See Compl., Attach 1, Stm. of Facts in Supp. of Compl., 1, 10-11, ECF No. 1-1; Gov't's Mot at 3.

         The defendant initiated communications, on January 22, 2017, by sending the UC a message regarding the former's enjoyment of “taboo sex” over a free mobile application named “Kik.” Gov't's Mot. at 3-4. Between that date and January 31, 2017, the defendant and UC exchanged messages, in which the defendant described in detail the sexual acts he intended to perform on the UC's purported nine year-old daughter and how he sought to prepare. See, e.g., Id. at 7 (“I'll let her suck me a little then I'll stroke while she Sucks you and I'll cum above her pussy. . . . “I'm thinking of using one if her dildos and rolling it in my cum then letting her suck it off while I eat her pussy); id. at 9 (“I can't wait to finger her then Lay her on a table and spread her legs to eat her while she Sucks you.”); id. at 7 (explaining defendant “would not be having sex with his wife [the] weekend [before] because wanted to ‘save it for' the UC's nine-year- old”). When the UC asked the defendant if he was actually “interested in meeting or just enjoy[s] the fantasy of it, ” the defendant said “Both.” Id. at 5.

         The defendant, in his conversations with the UC, revealed personal information and admitted to at least two other instances of engaging in sexual abuse of children. The defendant, for example, shared over KiK information about his family, which was later confirmed by law enforcement, including the names, ages, and residence of his children, as well as details about his wife. Id. at 8. The defendant also admitted that he had sexually abused his middle daughter, beginning when she “was eight years old while her mother ‘was gone on business trips a bunch.'” Id. The government confirmed from personnel records obtained from the Air Force that “the defendant was court martialed after pleading guilty to illicit sexual contact with a child under the age of 16, and as a result, was discharged from the service for bad conduct.” Gov't's Mot. at 14. In an interview with law enforcement, “[t]he defendant's now-adult daughter recently confirmed that the defendant sexually abused her for years, beginning from the time she was eight years old.” Id. The defendant's counsel also acknowledged the abuse in the September 22, 2017 hearing before this Court. See Rough Hr'g Tr. (Sept. 22, 2017) at 40:4-24 (providing defendant's counsel's response to the Court asking if “the abuse of their daughter all occurred when Mrs. John[ston] was married, ” with “Right, ” and explaining “that there was an incident 27 years ago for which Mr. John[ston] was court marshaled, ” and “was dishonorable discharged”).[1]

         Regarding the defendant's behavior more recently, the government has provided a KiK chat and email from the defendant that demonstrate “[t]he defendant also has known associations with individuals who have a sexual interest in children and/or who have access to children.” Gov't's Mot. at 20 (showing defendant telling UC in chat that “I have a local friend with a 12 year old. He had his girlfriend and me over one night and was showing his daughter. He came on her pussy and the girlfriend started eating the little girl”); id., Ex. 1 at 1, ECF No. 16-1 (providing email from defendant stating “I have another friend that has a 12 year old that I played with last year”).

         In addition to these admissions of at least two other instances of the defendant engaging in sexual abuse of a child, the government proffered that the defendant is “also under investigation by Virginia authorities for arranging to have sex with a 14-year-old child, conduct uncovered through an entirely separate undercover operation conducted by Virginia law enforcement.” Gov't's Mot. at 14. In fact, the defendant's lengthy pretrial detention is partially attributable to efforts to reach a “global” disposition of potential charges against him arising from the instant investigation as well as the local Virginia investigation. See Rough Hr'g Tr. (Sept. 22, 2017) at 28:3-5.

         On September 4, 2017, the defendant sought pretrial release in order to obtain medical treatment from the medical professionals of his choice after he was diagnosed, in June 2017, by medical personnel in the Department of Corrections (“DOC”) with colon cancer. Def.'s Mot. at 1, 3-5. The defendant, “[b]ased on “voluminous medical records documenting [his] medical treatment by [DOC] versus the treatment [he] would be afforded through his health insurer, ” argues he should be “released so as to obtain the best possible treatment for his cancer.” Def.'s Response to Gov't's Mot. for Emergency Stay and for Review of Release Order (“Def.'s Response”) at ¶¶ 1, 3, ECF No. 20. Although, based on that record, “[t]he defendant argues that the Court can infer that he will receive inadequate medical care going forward because DOC has provided inadequate care to date, as evidenced by the delay in his treatment, ” the government cites the same “medical records [to] demonstrate that the defendant delayed his own treatment by cancelling and refusing appointments.” Gov't's Mot. at 26. “The defendant has provided no evidence that he will receive inadequate medical care while incarcerated. The mere fact that this defendant has private insurance and prefers to be treated elsewhere is not a basis for this Court to treat him differently from any other inmates currently receiving cancer treatment.” Id. 26-27.

         The Magistrate Judge granted the defendant's motion for release, following several hearings, on September 21, 2017. In her written memorandum opinion, Mem. Supp. Pretrial Release Order, ECF No. 21, released after this Court had granted the government's request for review and denied the defendant's motion, the Magistrate Judge explained that while “reluctant to release” the defendant, she was granting the motion based on the defendant's medical history, id. at 11, and by imposing stringent requirements for his twenty-one day release, e.g., requiring the defendant's wife to serve as supervisor and imposing, inter alia, GPS monitoring, limits on outside access and access to minors, limits on use of devices, no internet, and password resets, the defendant's motion, id. at 15-17. The government's appeal followed.

         II. LEGAL STANDARD

         A motion under 18 U.S.C. § 3145(b) for review of a Magistrate Judge's detention order requires that the Court review de novo 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.” United States v. Hassanshahi, 989 F.Supp.2d 110, 113 (D.D.C. 2013) (citing 18 U.S.C. § 3142(e)(1)). “‘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)); see also United States v. Hitselberger, 909 F.Supp.2d 4, 7 (D.D.C. 2012).

         The Bail Reform Act of 1984 provides that “a person awaiting trial on a federal offense may either be released on personal recognizance or bond, conditionally released, or detained, ” United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999) (citing 18 U.S.C. § 3142(a)), but only detained after a detention hearing, 18 U.S.C. § 3142(f), consideration by the judicial officer of “the available information concerning” enumerated factors, id. § 3142(g), and a finding, supported by “clear and convincing evidence, ” id. § 3142(f), “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). “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)(E).[2]

         In determining whether conditions of release exist that will reasonably assure the appearance of the person as required and the safety of any other person and the ...


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