Opinion
Case No. 2:07-mj-0290.
May 1, 2008
ORDER
On July 11, 2007, the United States filed a criminal complaint against defendant Jonathan E. Brown. Mr. Brown is accused of having knowingly received child pornography by downloading various still photographs and videos onto his computers. He came to the attention of law enforcement when crossing into Canada last June. At that time, Canadian customs officials searched his car and found child pornography. He has since served a jail term in Canada and is currently in federal custody on the charges which were filed in this case.
The Court held a hearing on April 25, 2008 to consider the United States' request that Mr. Brown not be released on bond. According to the United States, he is both a danger to the community and a risk of flight, and there are no release conditions which would lessen those risks to the point where his release on bond would be appropriate. This order will address the issue of release conditions in light of the charges against Mr. Brown and the evidence presented at the hearing. The Court must also take into account the legal standard governing the United States' request for detention, which is set forth immediately below.
Mr. Brown has been charged with a violation of, inter alia, 18 U.S.C. § 2252(a)(1). As the court explained in United States v. Schenberger, 498 F.Supp. 2d 738, 741 (D.N.J. 2007),
If probable cause exists to believe that defendant committed an offense listed under section 2252(a)(1), then a rebuttable presumption exists that no condition or combination of conditions will reasonably assure the safety of any other person and the appearance of the person as required. 18 U.S.C. § 3142(e). [footnote omitted]. Once the rebuttable presumption is established, the burden is then placed on the defendant to produce countervailing evidence that forms a basis for his contention that he will appear and will not pose a threat to the community. U.S. v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986). If the defendant meets this burden of production, the burden shifts back to the government to prove a risk of flight by a preponderance of the evidence or dangerousness by clear and convincing evidence. United States v. Perry, 788 F.2d 100, 114-15 (3d Cir. 1986). The burden of persuasion always rests with the government. Id.
Mr. Brown waived his preliminary hearing. Thus, there is probable cause to believe that he committed the offenses charged in the complaint. Consequently, the initial presumption in favor of detention set forth in 18 U.S.C. § 3142(e) applies here. The Court will now set forth the evidence on which its decision is based.
Cameron Bryant, a Senior Special Agent employed by the Immigration and Customs Enforcement Agency, was the only witness at the hearing. He generally confirmed the allegations contained in the complaint concerning the presence of child pornography on Mr. Brown's laptop and home computers. He also testified, however, about other non-pornographic photos which were of particular concern.
According to agent Bryant, Mr. Brown had a large collection of photographs of younger boys, estimated to be between the ages of nine and fourteen, which appeared to be taken without the boys' knowledge. One exhibit, containing 28 photographs, was introduced into evidence at the hearing. Although agent Bryant conceded on cross-examination that some of those 28 photos did not depict either any young boys, or any people at all, and although most of them included several people, some did appear to be focused on a particular person. Where that was the case, the person was a young boy. Agent Bryant testified that many similar pictures were found in Mr. Brown's home. At least some of those pictures were taken with Mr. Brown's digital camera. According to agent Bryant, although there is currently no evidence that Mr. Brown has either taken a pornographic photograph of a minor or has engaged in any inappropriate sexual behavior with a minor, the photos show that he has gone beyond merely downloading pornographic images onto his computer, and that there is a continuum of conduct which can progress from the downloading of images to the actual molestation of children. Agent Bryant also testified that Mr. Brown has volunteered for organizations that bring him into contact with children, such as Big Brothers and a school latchkey program, has held at least one job that involved such contact, and has been the target of a few vague complaints from parents who thought that Mr. Brown's conduct with their children was somewhat questionable (although there have never been any allegations of sexual misconduct).
The Court's Pretrial Services office interviewed Mr. Brown in advance of the hearing and provided the Court with a report which discusses his employment history, community ties, criminal history, and other relevant factors. A similar report had been done by the Detroit Pretrial Services office because Mr. Brown first came into federal custody in Detroit. According to those reports, Mr. Brown is 33 years old and single. He was born and raised in Buffalo, New York, and moved to Columbus, Ohio in 2002. He has two college degrees and has worked with developmentally challenged adults, as a job coach and in a group home setting. He has no criminal record. He has no history of substance abuse. His mother still lives in Buffalo, and she would be willing to have Mr. Brown reside with her under an electronic monitoring program. She has also agreed not to allow him to have access, at least in her home, to firearms, computers, or computer-related equipment. She would also bring him back to Columbus for court appearances. The Columbus Pretrial Services office has recommended his release on strict conditions, including three conditions required by the Adam Walsh Child Protection and Safety Act — that he be supervised by a federal Pretrial Services officer, that he participate in an electronic monitoring program, and that he have no contact with any victims or witnesses in the case. At this point, no specific victims have been identified.
Turning first to the question of whether the United States proved by a preponderance of the evidence that Mr. Brown is a flight risk, the Court concludes that the evidence on this point is not sufficient to justify his detention without bond. Mr. Brown is a United States citizen. His passport has been confiscated. His family lives in Buffalo, New York, and he does not appear to have either the resources to flee the country (or to avoid prosecution by fleeing within this country) successfully, nor does he have any apparent ties to places to which he could flee. He has already been convicted in Canada of charges related to the charges he faces here, so he would not have any motivation to flee simply in order to avoid acquiring a criminal record. He may well be facing a substantial prison sentence here, depending upon which of the charged offenses he might be found guilty of, but the absence of a criminal history is a factor which usually favors a lower sentence. Certainly, his prison sentence would be enhanced if he fled prosecution, and he could also be charged with additional offenses were he to do so. Those are deterrents against flight. For all these reasons, the Court concludes that a program of close supervision by a pretrial services officer located in Buffalo, New York, and electronic monitoring at his mother's home would adequately address any potential flight risk.
The question of whether Mr. Brown poses a danger to the community is not quite as clear-cut. The United States has no evidence that he has ever victimized any specific child other than the victimization inherent in downloading images of child pornography. On the other hand, the taking of photographs of young boys without their knowledge and permission, and keeping large numbers of such photographs, is troubling. Nevertheless, Mr. Brown is entitled to the presumption of innocence afforded to every person who is accused of, but has not been convicted of, a federal crime. Further, the intent of the Bail Reform Act of 1984 is to make pretrial release available to every defendant except those who are a demonstrated danger to the community or a serious flight risk. The Court concludes that, through his lack of a criminal record, his positive employment history, and the willingness of his family to support him during any term of pretrial release, Mr. Brown has produced evidence that he is not a danger to the community. As the Schenberger decision points out, the United States must have presented clear and convincing evidence — more than just a preponderance of the evidence — showing that, despite all of the recommended release conditions, Mr. Brown would be likely to commit either a criminal offense or engage in conduct that is harmful to the community or to specific members of the community in order to justify his detention. The Court finds that it has not done so here.
Other court decisions are helpful on the issue of whether a defendant accused of downloading child pornography is an acceptable candidate for pretrial release. Some courts have detained such defendants on grounds that they are a danger to the community. However, there are usually factors that go beyond the mere possession of downloaded images (and beyond the type of conduct Mr. Brown has allegedly engaged in) which justify such decisions. For example, the defendant in United States v. Reiner, 468 F.Supp. 2d 393 (E.D.N.Y. 2006) was detained because, in addition to downloading images showing violence toward children, he had written over 2,000 stories about killing, sexually abusing, and eating children, and had been involved in internet chats about cannibalism. In the Schenberger case, the defendant was detained because he had arranged for his five-year-old niece to visit him and offered to install a webcam so that others could view him molesting her. By way of contrast, defendants facing charges similar to those involved in this case and whose background is similar to Mr. Brown's have been released on strict supervision even after conviction and pending sentencing (United States v. Reboux, 2007 WL 4409801 (N.D.N.Y. December 14, 2007)) or pending trial (United States v. Crowell, 2006 WL 3541736 (W.D.N.Y. December 7, 2006)). Such release has been ordered even for a defendant who had some history of actual child molestation.See United States v. Durham, 2006 WL 2092038 (N.D. Cal. July 24, 2006) (defendant who had been convicted of child molesting fifteen years before federal crime occurred, but who had not been charged with any such conduct in the intervening years, had not been shown by clear and convincing evidence to be a danger to the community).
It is the Court's view that, taking into account all relevant statutory factors, the United States has not shown by clear and convincing evidence that Mr. Brown poses a danger to the community if he is released under the conditions proposed by the Pretrial Services office. Although the evidence against him is quite strong, this case does not involve narcotics, Mr. Brown's family and employment history suggest he will be amenable to supervision, he has no criminal history, and was not on probation, parole, or other supervision at the time of this offense. See 18 U.S.C. § 3142(g). The mandatory conditions required by the Adam Walsh Child Protection Act, including pretrial supervision by an officer in Buffalo, electronic monitoring, and having no contact with victims or witnesses, and the other conditions recommended by Pretrial Services should adequately protect the community, especially in a case where there is no evidence that the defendant has ever engaged in inappropriate sexual behavior with a minor. Further, the conditions are strict enough that if Mr. Brown takes any steps in that direction, such as renewing his interest in child pornography via the internet or attempting to have unsupervised contact with minors, the Court will be able to intervene and can revoke his bond if necessary.
For all these reasons, the United States' motion for detention is denied. The Clerk shall set this matter for a hearing at which Mr. Brown's conditions of release can be explained to him, after which he will be released to his mother's home in Buffalo, New York, under electronic monitoring and other conditions.