United States District Court, D. New Mexico
January 6, 2017
UNITED STATES OF AMERICA, Plaintiff
GUY ROSENSCHEIN, Defendant
MEMORANDUM OPINION AND ORDER
Fashing United States Magistrate Judge.
MATTER is before the Court on defendant Guy Rosenschein's
opposed Motion to Reopen the November 14, 2016 Detention
Hearing, filed on December 16, 2016. Doc. 21. Dr. Rosenschein
asserts that there is information that was not known to him
at the November 14, 2016 detention hearing that has a
material bearing on whether there are conditions of release
that will reasonably assure his appearance and the safety of
the community. The Court finds that the fact that Dr.
Rosenschein's sister is willing to act as third party
custodian under strict conditions may be sufficient new
information to reopen the detention hearing. Nonetheless, the
Court still finds that there are no conditions of release
that will reasonably assure Dr. Rosenschein's appearance
as required, and also reasonably assure the safety of the
community. The Court therefore grants Dr. Rosenschein's
motion to reopen the detention hearing but denies his request
to be released to the third party custody of his sister.
November 9, 2016, the United States filed a criminal
complaint against Dr. Rosenschein alleging that he had
possessed and distributed child pornography, in violation of
18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). Doc. 1.
Dr. Rosenschein first appeared before the Court on November
10, 2016. Doc. 4. The Court held a detention hearing on
November 14, 2016. Doc. 7. At the hearing, the Court found
that Dr. Rosenschein had not introduced sufficient evidence
to rebut the presumption under 18 U.S.C. § 3142(e)(3)(E)
that no condition or combination of conditions reasonably
would assure the appearance of the Dr. Rosenschein as
required and the safety of the community. Doc. 8 at 2; Doc.
17 at 10. The Court further found that Dr. Rosenschein was a
flight risk because of his significant ties to another
country, and because he had two airplanes, a helicopter, a
pilot's license, and significant assets, giving him the
means to leave the country relatively easily. Doc. 8 at 2-3;
Doc. 17 at 10-11. The Court also found that Dr. Rosenschein
was a danger to the community based on the nature of the
charges against him, the allegation in the complaint that Dr.
Rosenschein armed himself with a firearm when officers came
to execute the search warrant on his residence, as well as
the allegation that a 16-year-old boy in boxer shorts was in
his bed, whom Dr. Rosenschein falsely said was his nephew,
but whom he later admitted was a former patient. See
Doc. 8 at 2-3; Doc. 17 at 10.
December 7, 2016, a federal grand jury returned a three-count
indictment against Dr. Rosenschein. Doc. 13. Counts 1 and 2
accuse Dr. Rosenschein of distributing and attempting to
distribute child pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2), (b)(1), and 2256. Id. at
1-2. Count 3 accuses him of possessing child pornography
involving prepubescent minors, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), (b)(2), and 2256. Id.
Rosenschein now seeks to reopen the detention hearing under
18 U.S.C. § 3142(f)(2), alleging that new information is
available that has a material bearing on whether he is a
flight risk and/or a danger to the community. See
Doc. 21. Specifically, he says that he has learned since the
last detention hearing that his sister is willing to serve as
a third party custodian for him. See Id. at 4. He
also says that he did not make his “life story”
known to the Court, so the Court made its determination
without knowing about his ties to the community and his
law-abiding life. See Id. The government opposes Dr.
Rosenschein's motion. See Doc. 28. The
government argues that Dr. Rosenschein has not met the
criteria for reopening a detention hearing under §
3142(f)(2). Id. at 6-8. The government also argues
that the Dr. Rosenschein has not rebutted the presumption
that he is both a flight risk and dangerous if he is
released. Id. at 8. But if Dr. Rosenschein has
rebutted that presumption, the government further argues that
he still poses a flight risk and a danger to the community if
released to his sister's custody based on the factors the
Court is required to consider. Id. at 8-13.
Court held a hearing on January 5, 2017. After considering
the parties' submissions, the pretrial services report,
the record of the November 14, 2016 hearing, the evidence
presented at the January 5, 2017 hearing, as well as the
arguments of counsel, the Court grants Dr. Rosenschein's
motion to reopen the detention hearing but denies his request
to be released to his sister's custody.
The Investigation of Dr. Rosenschein
Rosenschein first came to the attention of law enforcement
last summer. On July 31, 2016, and again on August 8, 2016,
the National Center for Missing and Exploited Children
(NCMEC) received tips from Chatstep.com that a user
identified only as “Carlo” had uploaded two
images of child pornography and sent them to another user.
The first image was transmitted on July 31, 2016, and the
second one was transmitted on August 8, 2016. The images
appeared to be of the same male child, approximately 13 to 15
years old, and depict him lying on a distinctive bedspread.
In one image the child was lying naked, face down, and an
adult male was placing his penis inside the child's anus.
In the second image, the child is laying on his back, with
his knees drawn up toward his chest. An adult male penis is
penetrating the child's anus.
forwarded the tips to the New Mexico Attorney General's
Office Internet Crimes Against Children (ICAC) Task Force.
Bernalillo County Sherriff's Office (BCSO) Detective Kyle
Hartsock initiated a criminal investigation. Detective
Hartsock issued subpoenas to the internet service provider
who owned the IP addresses used to upload the images. The
subpoenas required the provider to identify the subscriber
who was assigned the IP address at the date and time both
uploads took place. The internet service provider identified
the subscriber in both instances as Guy Rosenschein, and both
IP addresses resolved to Dr. Rosenschein's home address
November 8, 2016, Detective Hartsock and other officers
executed a state-issued search warrant at Dr.
Rosenschein's residence in Albuquerque. Law enforcement
officers arrived at Dr. Rosenschein's residence at
approximately 6:00 a.m. Because Dr. Rosenschein did not
respond to their knocks and announcements, the officers
forced entry into the home. When the officers first entered
the home, Dr. Rosenschein came out onto a second-floor
landing in his bathrobe. He then ran back into the master
bedroom, armed himself with a firearm, and came back out.
After a short time, he surrendered peaceably. The only other
person the officers found in the house was a 16-year-old boy,
identified as John Doe 1 at the evidentiary hearing, who was
in Dr. Rosenschein's bed (in the master bedroom) wearing
only his underwear. Dr. Rosenschein initially identified John
Doe 1 as his nephew, see Def. Exh. B at 3, but he
later was identified as a former patient unrelated to Dr.
Rosenschein had performed several surgeries on John Doe 1,
and had flown him to various places around the country,
unaccompanied by his parents. Dr. Rosenschein had John Doe 1
get a passport because Dr. Rosenschein wanted to take John
Doe 1 to his residence in Andorra, Spain, to go skiing. Dr.
Rosenschein told Detective Hartsock that John Doe 1 often
stays in his guest bedroom, and that they do not have a
Doe 1 was interviewed by a trained child/adolescent forensic
interviewer. John Doe 1 reported that there had been no
inappropriate touching or sexual behavior between him and Dr.
Rosenschein. Although John Doe 1 reported that he slept in
the guest bedroom the night before the search warrant was
executed, law enforcement officers found him in Dr.
Rosenschein's bed in the master bedroom. Notes taken
during the interview and apparently quoting John Doe 1 state,
“went to his house, spent the night, woke up to beep,
beep and ‘something' crash.” The notes
further state, “I went to his bedroom because he got
called Guy.” FBI Special Agent Ross Zuercher recalled
that John Doe 1 had told one of the detectives that he was in
Dr. Rosenschein's bed because he had gotten cold. A
review of John Doe 1's cell phone did not reveal any
child pornography or inappropriate conduct by Dr.
Doe 1's clothing and personal effects were in the guest
bedroom. John Doe 1's snowboards and boots were in Dr.
Rosenschein's garage. John Doe 1 stayed at Dr.
Rosenschein's house with his parents' permission.
John Doe 1's parents were not aware of any inappropriate
touching or sexual behavior between Dr. Rosenschein and their
son. John Doe 1's mother stated that John Doe 1 had had
problems in school, and she believed Dr. Rosenschein was a
good influence on John Doe 1.
the execution of the search warrant, law enforcement officers
seized numerous laptop computers, smart phones, iPads, and
electronic storage devices. See Def. Exh. A. The
forensic analysis of most of these devices has not been
completed. Among the items seized, however, was a thumb drive
attached to a key chain found in Dr. Rosenschein's car.
The thumb drive contained approximately 1120 images and
videos of child pornography. Forty-one of the images have
been linked to previously identified children. The general
focus of the images on the thumb drive was of young boys.
advising Dr. Rosenschein of his Miranda rights,
which Dr. Rosenschein agreed to waive, FBI Special Agent Mac
McCaskill interviewed Dr. Rosenschein. Dr. Rosenschein said
that he was familiar with Chatstep, and that he had sent
sexual photographs to others on Chatstep although he was not
aware of whether any of those photographs were of anyone
underage. He admitted that he may have used the username
“Carlo” although he said that he usually used the
username “Steve.” He denied ever having engaged
in sexual activity with an underage person. He admitted to
having had the thumb drive in his possession for several
years. He said that he had not looked at the thumb drive for
several years. Agent Zuercher thought that the forensic
analysis of the thumb drive showed that the last access date
was approximately three or four years ago.
Dr. Rosenschein's former colleagues sold Dr. Rosenschein
his residence, and she told Agent Zuercher that there was a
“secret room” in the residence underneath the
staircase and behind the closet. Agent Zuercher determined
that law enforcement officers overlooked this room during the
execution of the first search warrant. He obtained a second
search warrant to reenter the house and search this room.
There were two safes in the room. In one safe, Agent Zuercher
found five printed photographs, four of which depicted a
young “ethnic” boy, approximately 13 to 16 years
old, who was naked in a shower. Agent Zuercher characterized
the boy as “posing” for the photograph, with his
foot forward and smiling into the camera. “Avril
1994” was printed on the back of the photos. Agent
Zuercher also found some flight logs, one of which showed
that Dr. Rosenschein flew to Cambodia in March 1994. Dr.
Rosenschein went to Cambodia with the organization Aviation
Sans Frontières for a humanitarian project.
forensic analysis of an iPhone 3 seized during the execution
of the first search warrant disclosed a series of chat
conversations using the Yahoo Messenger service. The username
associated with the account was “cambodia1994.”
This was significant to Agent Zuercher because of the photos
of the nude “ethnic” boy were dated April 1994,
and because Dr. Rosenschein's flight logs showed that he
had flown to Cambodia in March 1994. The chat conversations
disclosed that “cambodia1994” said he was a
15-year-old boy who worked at a club and was regularly raped
by adult men. “Cambodia1994” asked many sexually
explicit questions about anal and oral sex, and said that he
was being paid to engage in sexual acts with adult men.
“Cambodia1994” said that his name was
“Steve, ” which also was significant to Agent
Zuercher because Dr. Rosenschein had told Agent McCaskill
that he mostly used the username “Steve.”
exhibits 1, 2, and 3 are samples of the chat conversations.
Government exhibit 3 suggests that “cambodia1994”
received child pornography using the messenger service, and
also offered to send pictures of child pornography.
“Cambodia1994” said, “Thx for vids is the
mm raping the boy with a white cap?” Gov. Exh. 3 at 1.
Later in the chat, “cambodia1994” offers to
“send pics but vids don't go through, ” and
that he would continue to try to send “pics.”
Id. The chats date from 2010 and 2011. This same
Yahoo Messenger account also was located on an iPad seized
during the execution of the first search warrant, but the
forensic analysis of the iPad is not yet complete. The most
recent access date on the Yahoo Messenger account was May
Dr. Rosenschein's Background
Rosenschein was born in France in 1953, and lived in and
around Paris until approximately 1995. He received his
medical degree in France, and specialized in pediatric
surgery and pediatric urology. He moved to New York in 1995
and obtained his license to practice medicine in the United
States. He has worked as a physician in New York, Arkansas,
Missouri, and New Mexico. He became a United States citizen
in 2004. He carries both a French and United States passport,
both of which were seized during the execution of the first
search warrant. He has lived in Albuquerque since 2012, at
which time he started working for Presbyterian as a pediatric
surgeon earning approximately $20, 000 per month.
Rosenschein owns two homes in Florida, his home in
Albuquerque, and apparently also owns a residence in Spain.
He owns two airplanes and a helicopter, and is a pilot. The
aggregate worth of his planes, helicopter, and residences in
the United States is almost $1.6 million. The Court has no
information regarding his liquid assets, or the worth of any
property he may own outside the United States. He has flown
extensively, both domestically and internationally. He speaks
French and English. He reported to Pretrial Services that he
travelled internationally two or three times per year, to
both Israel and France.
Rosenschein's parents are deceased. His father died in
France, and his mother moved to the United States when her
husband died. Dr. Rosenschein, with some help from his
sister, cared for his mother until her death. Dr. Rosenschein
has one sibling, a sister, who lives with her husband in
Arcadia, California. Although Dr. Rosenschein and his sister
grew up in the same household, she had not lived with him
since she was about twenty. They both moved to the United
States in the mid-nineties, but she moved to California, and
he moved to New York. During the time that Dr. Rosenschein
lived in Albuquerque, his sister saw him about two or three
times per year, and spoke to him about once a month. Dr.
Rosenschein has no children, and although he reported to
Pretrial Services a relationship with a woman since 1996,
there was no mention of this woman during the hearing.
Rosenschein's sister, Annie Rosenschein-Bars, offered to
act as third party custodian for Dr. Rosenschein. Ms.
Rosenschein-Bars is a retired French teacher, and her husband
is a professor at the University of Southern California. They
own a three-bedroom home in Arcadia, California that is
within walking distance to an elementary school. Ms.
Rosenschein-Bars was completely unaware of her brother's
possession of child pornography, his distribution of child
pornography, his sexual attraction to young boys, or his
sexually explicit chat conversations regarding the rape of
teenage boys, all of which she found surprising and
appalling. She is at home most of the time although she
occasionally runs errands, and her husband also mostly works
at home. She testified that both she and her husband would be
willing to report to Pretrial Services any violation by Dr.
Rosenschein of any conditions of release.
Rosenschein also presented the testimony of one of his
neighbors. His neighbor said that he saw Dr. Rosenschein
nearly every day, until his arrest, and was completely
unaware of Dr. Rosenschein's possession of child
pornography, his distribution of child pornography, his
sexual attraction to young boys, or his chats regarding the
violent rape of young boys. He nonetheless believed that Dr.
Rosenschein was a good man. The neighbor has 17-year-old
twins, a son and daughter, both of whom Dr. Rosenschein had
helped when they had a medical problem. The neighbor's
son mowed Dr. Rosenschein's lawn and had been to his
house. His son also had flown with Dr. Rosenschein a couple
of times. Neither of his children ever reported that Dr.
Rosenschein had acted inappropriately with them in any way.
The neighbor still would not have any problem with his son
being alone with Dr. Rosenschein.
Rosenschein's colleagues at Presbyterian Hospital
uniformly described Dr. Rosenschein as a good man and a good
doctor, and had never observed him do anything inappropriate
or unprofessional. However, an iPhone 6 seized from Dr.
Rosenschein contained approximately 12 photos on it depicting
three children-two infants and one child just entering
puberty-in a medical setting. The photos of the two infants,
one male and one female, showed their genitals. The photos of
the older child-which Agent Zuercher thought probably was a
girl, although no faces were shown-were of the child's
breasts. Presbyterian Hospital policies prohibited doctors
from taking photos of patients using their personal phones.
The hospital had strict procedures that were to be followed
if a doctor wanted or needed to take photos of a patient for
professional reasons. Presbyterian Hospital fired Dr.
Rosenschein approximately a day after he was taken into
federal custody. Dr. Rosenschein also lost his hospital
privileges as well as his medical license.
The State Case and Dr. Rosenschein's Arrest on Federal
Rosenschein was arrested on November 8, 2016 on state charges
of possession and distribution of child pornography.
See Def. Exh. B. He was released the next day on
conditions of release. See Def. Exh. D. The docket
in the criminal case suggests that the prosecutor did not
object to Dr. Rosenschein's release on conditions.
See Def. Exh. C. Immediately after his release, Dr.
Rosenschein went to the store to purchase a new phone and
laptop, using his same telephone number on his new phone. He
then returned to his home. He was taken into federal custody
on November 10, 2016. There was no evidence that Dr.
Rosenschein violated the conditions of his state release
order during the approximately 24 hours between the time he
was released from state custody and the time he was taken
into federal custody, although apparently he still had one
firearm in his home that had not been found and seized during
the execution of the first search warrant.
Grounds for Reopening the Hearing
a judicial officer may reopen a detention hearing, she may
only do so if she “finds that information exists that
was not known to the movant at the time of the hearing and
that has a material bearing on the issue whether there are
conditions of release that will reasonably assure the
appearance of such person as required and the safety of any
other person and the community.” 18 U.S.C. §
3142(f)(2). Here, Dr. Rosenschein offers two grounds for
reopening the hearing: (1) information that his sister will
act as third party custodian, and (2) information relating to
his ties to the United States and his law-abiding life. Only
the first ground is information “not known to the
movant” at the November 14, 2016 hearing. Although Dr.
Rosenschein did not disclose his ties to the United States
and otherwise fully inform the Court of his “life
story, ” he certainly knew of those ties and that story
at the time of the first hearing. That story, consequently,
is not a basis for reopening the hearing.
government does not dispute that Dr. Rosenschein did not know
his sister was willing to act as third party custodian at the
hearing on November 14, 2016. Although this information
arguably has a material bearing on whether there are
conditions of release that will reasonably assure Dr.
Rosenschein's appearance at future proceedings and/or
reasonably assure the safety of the community sufficient to
reopen the hearing, the Court still finds that detention is
warranted based on the entire record.
The Statutory Detention Factors Warrant Dr. Rosenschein's
18 U.S.C. § 3142, a defendant ordinarily is entitled to
pretrial release, with or without conditions, unless the
Court “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.” 18 U.S.C. § 3142(e)(1). Subsection (g)
of § 3142 sets forth the general factors that the Court
is to consider “in determining whether there are
conditions of release that will reasonably assure the
appearance of the person as required and the safety of any
other person and the community.” 18 U.S.C. §
3142(g). They include the nature and circumstances of the
charged offense, the weight of the evidence, the history and
characteristics of the defendant, and the nature and
seriousness of the danger posed by the defendant to the
community if released. Id.
as noted above, a presumption of both flight risk and
dangerousness arises in certain cases. Under §
3142(e)(3)(E), “[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-(E) an offense involving a
minor victim under section . . . 2252A(a)(2) . . . of this
Once the presumption is invoked, the burden of production
shifts to the defendant. However, the burden of persuasion
regarding risk-of-flight and danger to the community always
remains with the government. The defendant's burden of
production is not heavy, but some evidence must be produced.
Even if a defendant's burden of production is met, the
presumption remains a factor for consideration by the
district court in determining whether to release or detain.
United States v. Stricklin, 932 F.2d 1353, 1354-55
(10th Cir. 1991). Importantly, “[t]he concept of safety
of the community under § 3142(e) is not limited to the
danger of physical violence, but rather ‘refers to the
danger that the defendant might engage in criminal activity
to the detriment of the community.'” United
States v. Boy, 322 F. App'x 598, 600 (10th Cir.
2009) (quoting United States v. Cook, 880 F.2d 1158,
1161 (10th Cir. 1989)).
counts 1 and 2, Dr. Rosenschein is charged under 18 U.S.C.
§ 2252A(a)(2). The presumption of both flight risk and
dangerousness therefore applies. For the purpose of this
motion, the Court will assume without deciding that Dr.
Rosenschein has introduced sufficient evidence to meet his
burden of production. Nonetheless, after considering the
factors under 18 U.S.C. § 3142(g) and the presumption, I
find by clear and convincing evidence that no condition or
combination of conditions will reasonably assure the safety
of the community, and by a preponderance of the evidence that
no condition or combination of conditions will reasonably
assure Dr. Rosenschein's appearance as required.
Nature and Circumstances of the Offense Charged
charges Dr. Rosenschein faces are serious, and the harm that
such offenses perpetrate upon children is
“devastating.” Paroline v. United
States, 134 S.Ct. 1710, 1717 (2014). Even if the Court
considers only the possession charge, being a
“consumer” of child pornography involving
prepubescent children encourages others to sexually abuse
young children to create the pornography. As the Supreme
Court stated in 2014,
Three decades ago, this Court observed that “the
exploitive use of children in the production of pornography
has become a serious national problem.” New York v.
Ferber, 458 U.S. 747, 749  (1982). The demand for
child pornography harms children in part because it drives
production, which involves child abuse. The harms caused by
child pornography, however, are still more extensive because
child pornography is “a permanent record” of the
depicted child's abuse, and “the harm to the child
is exacerbated by [its] circulation.” Id. at
759 . Because child pornography is now traded with ease on
the Internet, “the number of still images and videos
memorializing the sexual assault and other sexual
exploitation of children, many very young in age, has grown
exponentially.” United States Sentencing Comm'n, P.
Saris et al., Federal Child Pornography Offenses 3 (2012).
Paroline, 134 S.Ct. at 1716-17 (internal parallel
citations omitted). In describing the victim in
Paroline, the Court observed,
The full extent of this victim's suffering is hard to
grasp. Her abuser took away her childhood, her
self-conception of her innocence, and her freedom from the
kind of nightmares and memories that most others will never
know. These crimes were compounded by the distribution of
images of her abuser's horrific acts, which meant the
wrongs inflicted upon her were in effect repeated; for she
knew her humiliation and hurt were and would be renewed into
the future as an ever-increasing number of wrongdoers
witnessed the crimes committed against her.
Id. at 1717.
evidence in this case indicates that Dr. Rosenschein
possessed more than one thousand images and videos of child
pornography, many of which involve prepubescent minor males.
Dr. Rosenschein kept these images literally at his
fingertips-on a thumb drive attached to a key chain found in
his vehicle. Forty-one of the files on the thumb drive
depicted previously-identified children.
1 and 2 charge Dr. Rosenschein with distributing child
pornography, again involving a young boy. These counts charge
Dr. Rosenschein with further perpetuating the harm to the
victim, not just by viewing the images and sustaining the
market for such images, but by enlarging it. Congress has
determined that these offenses are sufficiently serious that
the Court should presume that a defendant accused of these
crimes is both a danger and a flight risk. If convicted, Dr.
Rosenschein faces a minimum mandatory statutory sentence of
five years in prison on both counts 1 and 2, which is not
insignificant for a man of 63. Thus, the nature and
circumstances of the offenses with which Dr. Rosenschein has
been charged weighs heavily in favor of detention, not only
because Dr. Rosenschein poses a continuing risk of danger to
children, but also because the potential penalty is an
incentive for him to abscond.
The Weight of the Evidence
evidence that Dr. Rosenschein knowingly possessed and
distributed child pornography is substantial. Dr. Rosenschein
admitted that the thumb drive connected to his key chain was
his, and that he had acquired it several years ago. He
admitted to using the name Carlo on the
“chatstep.com” web site, which was the name and
site used to transfer the two images identified in counts 1
and 2 of the indictment. The IP address used to transfer the
images was accessed by an account registered to Dr.
Rosenschein. A phone seized from Dr. Rosenschein's home
office revealed a Yahoo Messenger account used to engage is
sexually explicit conversations describing men raping young
boys. At least one chat, dating from 2010, suggests that the
account was used to transfer child pornography. Thus, the
weight of the evidence also weighs heavily in favor of
detention. Not only does it further demonstrate the risk of
danger Dr. Rosenschein poses to children, but it also
increases the risk that he will attempt to flee because of
the likelihood of a conviction.
The History and Characteristics of Defendant
Dr. Rosenschein does not have any prior criminal convictions,
his personal history suggests that he is a danger to
children, and that he is willing to use his position as a
pediatric surgeon to gain access to minors for the purpose of
engaging in inappropriate behavior. Dr. Rosenschein admitted
that he sometimes is sexually attracted to underage males.
Photographs and documents found in Dr. Rosenschein's home
indicate that Dr. Rosenschein went to Cambodia in 1994 and
had some type of contact with a boy approximately 13 to 16
years old, or at least photographed the boy posing nude in
the shower. Chat conversations on Dr. Rosenschein's phone
indicate that Dr. Rosenschein at a minimum fantasizes about
older men raping boys. He had a nearly nude 16-year-old
former patient in his bed when law enforcement officers came
to his house to execute a search warrant. Dr. Rosenschein at
first lied about his relationship with the boy, claiming that
the boy was his nephew, but later admitted that the boy was a
former patient who regularly stayed with him. Dr. Rosenschein
also had several photographs on his phone that depict
close-up views of genitalia in what appear to be a medical or
hospital setting. Presbyterian Hospital, where Dr.
Rosenschein formerly was employed, does not permit physicians
to take medical photographs on their personal phones.
Rosenschein also has substantial financial means. He owns a
home in Albuquerque, two homes in Florida, and a home or
apartment in Spain. He owns two airplanes and a helicopter,
and has a pilot's license. He has flown extensively both
in the United States and abroad. He reported to Pretrial
services that he travels internationally approximately two or
three times per year, to both France and Israel. He carries
both a United States and French passport, although both
passports were seized when he was arrested. He also has
substantial earning capacity as a pediatric surgeon and
presumably has substantial liquid assets about which the
Court has no information. He speaks both French and English.
And although he claims that his most substantial ties are to
the United States, he was born in France, he obtained his
medical degree in France, he practiced as a doctor for many
years in France, and he maintains his French citizenship.
Rosenschein's history and characteristics therefore weigh
in favor of detention. His personal history demonstrates that
he is sexually attracted to young boys, and that he may be
willing to take advantage of his position to gain access to
them. He fantasizes about violent sex between older men and
young boys, and he admitted to being sexually attracted to
minor boys. Although Dr. Rosenschein has no criminal history,
he admitted that he acquired the thumb drive containing more
than 1100 images and videos of child pornography on it many
years ago, his chats date back to 2010, and he had photos of
a naked boy posing in a shower dated 1994, all of which
establish that the recent charges against him are not an
aberration. Despite this history, Dr. Rosenschein was able to
hide his predilection for young boys from his family,
neighbors, friends and colleagues. In addition, Dr.
Rosenschein has substantial financial means, is
well-educated, and has traveled internationally extensively.
If released to his sister's custody-who apparently has
remained ignorant of her brother's longstanding
attraction to underage boys-it would be nearly impossible to
ensure that he not gain access to a smart phone or other
electronic device through which he could continue to access
and/or distribute child pornography. And given his financial
means, education, pilot's license, and history of
international travel, he also could attempt to devise a way
to leave the country surreptitiously.
The Nature and Seriousness of Danger to Any Person or the
Community if Defendant is Released
potential danger to children if Dr. Rosenschein is released
is great. As noted above, it would be nearly impossible to
ensure that Dr. Rosenschein not gain access to a smart phone
or other device with which he could continue to obtain and
distribute child pornography. Dr. Rosenschein's sister
admitted that her brother had successfully hidden these
crimes from her in the past. This in itself endangers the
children who are the victims of child pornography. Although
Dr. Rosenschein's counsel suggested at the hearing that
the possession and distribution of child pornography is a
victimless crime, both Congress and the Supreme Court
disagree. As noted above, Congress has determined that
defendants accused of distributing child pornography are
presumed dangerous, and it did not impose any requirement on
the number of images that must be distributed before the
presumption applies. See 18 U.S.C. §
3142(e)(3)(E). And the Supreme Court has characterized the
harm caused to the child victims of child pornography
possession and distribution as “devastating.”
See Paroline, 134 S.Ct. at 1717. Thus, the risk that
Dr. Rosenschein will possess or distribute child pornography
if released is sufficiently dangerous to warrant his
there also is the danger that Dr. Rosenschein will attempt to
engage in sexual contact with a minor, even if the minor is
legally incapable of consenting to the contact. Dr.
Rosenschein admitted to being sexually attracted to young
boys, and he engaged in sexually explicit fantasy chats that
described adult men raping a 15-year-old boy. That Dr.
Rosenschein had flown his 16-year-old former patient around
the United States, allowed him to stay with him regularly,
and promised him a skiing trip to Spain demonstrates that he
understands how to “groom” children so that they
trust him and will agree to spend time with him. And although
both John Doe 1 and Dr. Rosenschein denied having a sexual
relationship, the fact that his former patient was found in
his bed in only his underwear suggests that the relationship
was not entirely platonic. Although the boy was above the age
of consent in New Mexico, see State ex rel. Children,
Youth & Families Dep't v. Paul P., Jr.,
1999-NMCA-077, ¶ 10, 127 N.M. 492, 494, 983 P.2d 1011,
1013 (“Although, on its face, the statutory language
‘perpetrated on a child thirteen to sixteen years of
age' could be construed to include a sixteen-year-old
victim, we have never given the language such an
interpretation. Rather, our cases have long held that
criminal sexual penetration of a sixteen-year-old does not
fall under similar statutory provisions.”), he was
below the age of consent in California, see Cal.
Penal Code § 261.5 (West 2011). Thus, the nature and
seriousness of the danger Dr. Rosenschein poses to another
person or the community also weighs in favor of detention.
IS THEREFORE ORDERED that defendant Guy
Rosenschein's opposed Motion to Reopen the November 14,
2016 Detention Hearing (Doc. 21) is granted in part and
denied in part. The Court GRANTS Dr. Rosenschein's motion
to reopen the hearing, but DENIES his request to be released
to the third party custody of his sister. Dr. Rosenschein
shall remain in custody pending further proceedings.