United States District Court, D. New Mexico
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 ...