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United States v. Nickelson

United States District Court, District of Columbia

October 15, 2018

UNITED STATES OF AMERICA
v.
DANIEL A. NICKELSON, JR., Defendant.

          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 ...

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