Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Rosenchein

United States District Court, D. New Mexico

January 6, 2017

UNITED STATES OF AMERICA, Plaintiff
v.
GUY ROSENSCHEIN, Defendant

          MEMORANDUM OPINION AND ORDER

          Laura Fashing United States Magistrate Judge.

         THIS 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.

         I. Procedural Background

         On 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.

         On 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. at 2.

         Dr. 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.

         The 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.

         II. Factual Findings

         A. The Investigation of Dr. Rosenschein

         Dr. 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.

         NCMEC 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 in Albuquerque.

         On 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.

         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 sexual relationship.

         John 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. Rosenschein.

         John 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.

         During 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.