MEMORANDUM OPINION
BERYL
A. HOWELL, CHIEF JUDGE
The
defendant, Daniel A. Nickelson, Jr., has been charged by
criminal complaint, with three charges of distributing,
conspiring to distribute and advertising to offer to
distribute child pornography, in violation of 18 U.S.C.
§§ 2252(a)(2), 2252(b)(1) and 2251(d). Crim. Compl.
at 1, ECF No. 1. Following the defendant's arrest, on
August 28, 2018, in his home state of Arizona, the
government's motion for pretrial detention was denied by
a magistrate judge in the District of Arizona at a detention
hearing held on September 5, 2018, and the magistrate judge
instead entered an order for pretrial release of the
defendant to home confinement without access to the internet.
The magistrate judge stayed the order pending the
government's appeal, see Min. Entry (dated September 5,
2018), District of Arizona, 4:18-mj-05938, and the defendant
was ordered transported to this District, see Order Granting
Gov't's Mot. Transport of Def., ECF No. 7.
Thereafter, based upon the evidence proffered by the parties
at a detention hearing, on October 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 relied, as support for
seeking the defendant's pretrial detention, largely on
the factual allegations set out in the criminal complaint, as
well as statements made by the defendant at the time of his
arrest and the preliminary results of a forensic examination
of the defendant's cell phone recovered from his person
at the time of his arrest. In particular, as detailed in the
criminal complaint, 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., observed the
defendant's activity, between July 6 and July 20, 2018,
on a private KIK group called “Pedos Only, ” to
which the UC had been invited to participate by another user.
Crim. Compl., Statement of Facts, ¶ 1, ECF No. 1-1. 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. Using the username “dnick1982, ” the
defendant asked other users of the “Pedos Only”
group to send him child pornography in a private KIK message
group, in order to gain entry to yet another private KIK
chatroom, and also posted the query whether “Any one
wanna trade vids.” Id. at 1.
In
private KIK chats with the UC, the defendant: (1) advised the
UC regarding the UC's purported minor daughter,
“Just have fun with her when she is awake, ” and
told the UC that the defendant had “a few”
videos, Id. at 2; (2) sent the UC a link to a
“safe” Dropbox folder with twelve child
pornography videos, including of toddlers, showing the
children engaged in sexual acts with adults, Id. at
3; (3) sent the UC directly a video of a female of an unknown
age masturbating, id.; (4) sent the UC directly a video of a
female inserting two fingers in her vagina, id.; and
(5) on July 13, 2018, invited the UC to a second private KIK
group, consisting of at least ten users, who traded child
pornography images and videos, Id. at 4.
The UC
observed the defendant's activity in the second private
KIK group, including: (1) on July 16, 2018, the defendant
posted, a child pornography video and expressed his desire to
have sexual intercourse with an underage girl, id.; (2) on
July 16, 2018, the defendant was promoted to an
“administrator” and then, the next day, to
“owner” positions for the group, with the power
to control access to, and content available to, the group,
Id. at 5; (3) the defendant urged other users to
post more child pornography material, id.; (4) on July 18,
2018, the defendant uploaded the same Dropbox link previously
given to the UC to the group and also uploaded images and
videos of child pornography directly to the group, id.; and
(5) on July 18 and 19, 2018, the defendant warned other users
to post “good enough vids” or face removal from
the group and then another user posted links to 23 Dropbox
and other sites containing over 6, 500 child pornography
files of children appearing to be of elementary through high
school age, Id. at 6-7.
At the
time of the defendant's arrest, the defendant was in
possession of a cell phone on which child pornography was
stored, including such images of an infant and toddler that
the defendant had viewed the morning of his arrest while at
work. The defendant had the usernames of over 550 KIK users
saved in his KIK account. In a statement to law enforcement,
the defendant admitted to being a KIK user but attempted to
excuse his conduct with the explanation that his purpose was
to obtain evidence to bring to the Federal Bureau of
Investigation.
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 ...