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United States v. Blanchard

United States District Court, District of Columbia

October 15, 2018

UNITED STATES OF AMERICA
v.
JULIAN PHILIP BLANCHARD, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         The defendant, Julian Philip Blanchard, has been charged by criminal complaint, with Distribution of Child Pornography through Interstate Commerce, in violation of 18 U.S.C. § 2252(a)(2). Crim. Compl. at 1, ECF No. 1. Following the defendant's arrest, on August 29, 2018, in his home state of Louisiana, the government's motion for pretrial detention was denied by a Magistrate Judge in the Middle District of Louisiana at a detention hearing held on September 4, 2018. The order for pretrial release of the defendant to the third-party custody of his parents, and other conditions, was stayed by this Court, pursuant to 18 U.S.C. § 3145(a), see Order Granting Gov't's Emergency Mot. Stay Execution of Release Order, ECF No. 6, and the defendant was ordered transported to this District, see Order Granting Gov't's Mot. Transport of Def., ECF No. 9. Thereafter, based upon the evidence presented and proffered by the parties at a detention hearing, on October 9 and 12, 2018, before this Court, the government's motion to detain the defendant was granted. See Min. Entry (Oct. 12, 2018). This Memorandum Opinion sets out the findings and reasons for detention. See 18 U.S.C. § 3142(i)(1) (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 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

         At the detention hearing, the government presented the testimony of Federal Bureau of Investigation (“FBI”) Special Agent Christopher Ford, who re-affirmed the allegations in the criminal complaint, and proffered additional evidence in support of the government's detention motion. In particular, as detailed in the criminal complaint, on July 6, 2018, the defendant, using the username “jayrock985, ” initiated contact with a D.C. Metropolitan Police Department detective (“UC”), who was acting undercover as part of the MPD-FBI Child Exploitation Task Force operating out of a local office in Washington, D.C. Crim. Compl., Statement of Facts (“SOF”), at 1, ECF No. 1-1.[1] The defendant contacted the UC at a KIK account that the UC had posted on an anonymous website along with a message soliciting contact with persons interested in incest and “watching really yng today.” Id. KIK is a free instant messaging mobile application that supports the transmission and receipt of multi-media content between individual users and in group chat rooms. Id. at 1 n.1. Between July 6 and July 10, 2018, the defendant engaged in private KIK chats with the UC, in the course of which the defendant sent to the UC: (1) a link to a site with dozens of files of child erotica, Id. at 2; and (2) three videos of child pornography showing an infant, a toddler and prepubescent girl being sexually abused, respectively, Id. at 3, 4.

         On July 6, 2018, while also chatting privately on KIK with the UC, the defendant invited the UC to a private KIK group called “Pedos Only, ” where users were trading child pornography. Id. at 3. Several days later, on July 9, 2018, the defendant posted to the Pedos Only site, the same child pornography video showing the toddler previously sent to the UC, Id. at 5, and, on July 11 and 12, 2018, the defendant invited three other users to this same private KIK chat. Id. The other users of the Pedos Only site distributed a combination of links to and/or images of child pornography to other users of the site. Id.

         At the time of the defendant's arrest, he was in possession of various electronic devices, including an iPhoneX and a Nokia cell phone. Forensic examination revealed that the iPhone X had at some time had the KIK application installed, but it had been removed, and the Nokia cell phone, which had been used between 2013 and 2015, contained about 36 stored child pornography images.

         At the detention hearing, the government provided documentation, in Gov't's Ex. 2, regarding the defendant's prior conviction in March 2009 for cyberstalking in the Parish of Tangipahoa, Louisiana, stemming from an undercover police investigation, in which undercover officers posed as juvenile girls in Yahoo chatrooms. According to the police report, dated October 4, 2006, incorporated in Gov't's Ex. 2, in September 2006, the defendant engaged in online explicit sexual conversations with an undercover officer, who was posing as a 15-year old girl, during which conversations the defendant used a webcam to show himself masturbating and arranged to meet the girl to have sexual relations. Gov't's Ex. 2. The defendant was arrested at the location he had arranged for that meeting, in possession of a box of condoms. Id. Review of the defendant's Yahoo account showed that he “has several underage girls that he chats with” and the defendant “also admitted to having child pornography on his computer.” Id.

         II. LEGAL STANDARD

         The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., provides that “a person awaiting trial on a federal offense may either be released on personal recognizance or bond, conditionally released, or detained, ” and “establishes procedures for each form of release, as well as for temporary and pretrial detention.” United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999) (citing 18 U.S.C. § 3142(a)). The court is required, under 18 U.S.C. § 3142(f)(1), to hold a pretrial detention hearing, upon the government's motion for detention, before releasing any defendant charged with certain serious crimes, including “a crime of violence, ” which is defined to include “any felony under chapter…110.” 18 U.S.C. § 3156(a)(4)(C). A judicial officer “shall order” a defendant's detention before trial, Id. § 3142(e)(1), if, after the detention hearing held under Section 3142(f), and consideration of “the available information concerning” enumerated factors, Id. § 3142(g), “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, ” Id. § 3142(e)(1). The facts used to support this finding “shall be supported by clear and convincing evidence.” Id. § 3142(f). Even if the defendant does not pose a flight risk, danger to the community alone is sufficient reason to order pretrial detention. United States v. Salerno, 481 U.S. 739, 755 (1987).

         When a defendant is charged with enumerated offenses described in Sections 3142(e)(2), (e)(3) and (f)(1), “[s]ubject 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” such an offense. 18 U.S.C. § 3142(e)(3). Once a rebuttable presumption is triggered, the defendant bears the burden of production “to offer some credible evidence contrary to the statutory presumption, ” United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985), while the ultimate burden of persuasion remains with the government, see United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008); see also United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003) (“In a presumption case such as this, a defendant 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 or a risk of flight.” (quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)); United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (noting that the burden remains with the government to persuade the court that the defendant is a danger or poses a risk of non-appearance). The defendant is not required to rebut the presumption that the criminal activity is dangerous, or even to rebut the judicial finding as to probable cause, but only to “meet[] a ‘burden of production' by coming forward with some evidence that he will not flee or endanger the community if released.” Dominguez, 783 F.2d at 707.

         The judicial officer considering the propriety of pretrial detention must consider four factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, …or involves a minor victim. . .;
(2) the weight of 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 . . . whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other ...

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