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United States v. Christy

United States District Court, D. New Mexico

March 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD CHRISTY, Defendant.

          MEMORANDUM OPINION AND ORDER

         On February 2, 2018 the United States filed a motion seeking to detain Defendant Edward Christy pending disposition of his criminal case.[1] Defendant opposed this motion and the matter was fully briefed.[2] The Court held a hearing on March 14, 2018 that continued on March 15, 2018. Assistant United States Attorneys Holland Kastrin and Sarah Mease appeared on behalf of the United States. Attorney Todd Coberly appeared on behalf of Defendant Edward Christy, who was also present. After considering the parties' briefs, arguments, and evidence the Court determined there are no conditions of release that will reasonably assure community safety if Defendant were to be released and ordered that Defendant be detained pending his trial. This Memorandum Opinion and Order details the Court's reasons for its pretrial detention determination.

         BACKGROUND

         United States District Court Judge James O. Browning set forth the relevant facts of this case in previous memorandum opinions and orders and the Court will not repeat them here.[3] In summary, on April 26, 2011, a federal grand jury returned a Superseding Indictment (Doc. 94) charging Defendant with one count of transportation with intent to engage in criminal sexual activity under 18 U.S.C. § 2423(a) (Count 1), and three counts of possession of matter containing visual depictions of minors engaged in sexually explicit conduct (hereinafter, “Possession of Child Pornography”), under 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256 (Counts 2 through 4). These charges related to Defendant's actions with a sixteen-year-old Jane Doe described by Magistrate Judge Lourdes A. Martinez in the Proposed Findings and Recommended Disposition, filed May 5, 2016 (Doc. 265) and adopted by Judge Browning on June 30, 2016. See Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 269). On September 30, 2011, the United States filed an Information that charged Defendant with one count of Coercion and Enticement contrary to 18 U.S.C. § 2422(a) (Count 1), and one count of Possession of Child Pornography contrary to 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256 (Count 2). See Information (Doc. 193). In accordance with a Plea Agreement, Defendant pleaded guilty to both charges of the Information, and Judge Browning subsequently dismissed the Superseding Indictment. See Order of Dismissal (Doc. 214); Plea Agreement (Doc. 195). On May 23, 2012, Judge Browning entered final judgment against Defendant on both Counts of the Information and imposed a term of incarceration of 108 months for each of Counts 1 and 2 to run concurrently. See Judgment (Doc. 226). Judge Browning further imposed a life term of supervised release for each of the two counts also to run concurrently. See id.

         On October 1, 2015, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence under 18 U.S.C. § 2255. (Doc. 250). Based on a change in New Mexico case law applied retroactively to Defendant's case, Magistrate Judge Lourdes Martinez recommended vacating Defendant's Coercion and Enticement conviction. Judge Browning adopted Judge Martinez's proposed findings and recommended disposition. (Doc. 269). On June 30, 2016, Judge Browning vacated Defendant's Coercion and Enticement (Count 1) conviction, but left Defendant's conviction and sentence for Possession of Child Pornography (Count 2) intact. Despite concluding that the Plea Agreement was not rendered invalid based on the vacatur of the Coercion and Enticement conviction, Judge Browning afforded Defendant the option to (A) stand by his Plea Agreement as to the remaining conviction for Possession of Child Pornography (Count 2), or (B) withdraw his plea, understanding that if he chose to do so, the Government could reinstate the Possession of Child Pornography charges contained in the dismissed Superseding Indictment. See Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 269). On January 19, 2018, Judge Browning issued a Memorandum Opinion and Order (Doc. 321) clarifying that the United States may enforce the Rule 410 waiver contained in Defendant's Plea Agreement only if the United States reinstated just the single Possession of Child Pornography charge in Count 2 of the Information to which Defendant had pleaded guilty.

         In the meantime, on September 22, 2017, Defendant was released from Bureau of Prisons (BOP) custody after nine years and began his term of lifetime supervision with four months of transitional assistance at Diersen Charities Residential Reentry Center in Albuquerque, New Mexico. Defendant completed his four-month term at Diersen on January 21, 2018 and began residing in the community, first at a motel, and later at a leased apartment. See Exhibit B to Def. Resp. to U.S. Mot. to Detain, Doc. 330-2. Defendant also secured employment with the National Opinion Research Center where he has been working 28 hours a week since February 8, 2018. See Exhibit A to Def. Resp. to U.S. Mot. to Detain, Doc. 330-1.

         On January 29, 2018, in accordance with Judge Browning's Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 269) which addressed Defendant's 18 U.S.C. § 2255 Motion, the parties filed a joint motion to set a hearing with the express purpose of allowing Defendant to formally withdraw his guilty plea to Count 2, Possession of Child Pornography. See Joint Motion for Hearing (Doc. 323). On March 14, 2018, the Court held a hearing on the parties' motion, and found that Defendant knowingly, voluntarily, and intelligently agreed to withdraw his plea of guilty to one count of Possession of Child Pornography as charged in Count 2 of the Information. The Court then accepted Defendant's plea withdrawal. On oral motion by the United States, and in accordance with Judge Browning's prior ruling on Defendant's § 2255 Motion, the Court reinstated Count 2 of the Superseding Indictment (Doc. 94), which is equivalent to Count 2 of the Information. The Court memorialized its rulings in an Order Reinstating Count 2 of the Superseding Indictment and Clarifying the Charges (Doc. 336). As a result, Defendant is currently charged with only one count of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(b).

         On March 14, 2018 and continued onto March 15, 2018, the Court held a hearing addressing the United States' motion to detain Defendant pending trial. In preparation for the hearing the Court reviewed evidence already in the record relevant to a pretrial detention determination, including the transcript and evidence presented at the June 16, 2010 detention hearing before Judge Browning. The Court also heard testimony and statements from Federal Bureau of Investigations (FBI) Special Agent Victoria Vaughan, U.S. Probation and Pretrial Services Officers Erick Newton and John Lovato, and from Defendant Edward Christy. The Court reviewed a number of reports and documents to include: a pretrial services report, a BOP Progress Report dated August 8, 2016, a Mental Health Treatment Termination Report from Counseling World dated September 26, 2017, a BOP Sex Offender Discharge Summary from Relevancy Inc. dated August 24, 2017, a Sex Offense Specific Evaluation authored by Dr. Bobby Sykes dated June 25, 2017, a Biopsychosocial Summary from the Evolution Group dated October 3, 2017, and a number of documents pertaining to an incident that occurred on July 6, 2017 including a written statement by Relevancy counselor Patrick Downing, two FBI Forms FD-302 reporting interviews conducted by FBI Agent Victoria Vaughan, and an email chain between BOP employees and staff at Diersen Charities. The Court also considered the parties' briefs and exhibits, and heard argument from both parties. On March 15, 2018, the Court issued an oral order to detain Defendant, to be followed by a written Memorandum Opinion and Order detailing the Court's reasoning for its decision.

         DISCUSSION

         “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” U.S. v. Salerno, 481 U.S. 739, 755 (1987). But a defendant may be detained pending trial if a “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.” 18 U.S.C. § 3142(e). The United States contends that Defendant should be detained because he poses a risk to the community and a risk of nonappearance. See generally Motion. In this case, the charge against Defendant does not give rise to a rebuttable presumption of detention, see § 3142(e)(3). Consequently, the United States bears the burden of demonstrating risk of flight by a preponderance of the evidence, and the burden of proving dangerousness by clear-and-convincing evidence. See United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003).

         The Bail Reform Act, 18 U.S.C. § 3142(g), sets forth the framework for evaluating whether pretrial detention is appropriate. It requires a judicial officer to consider four factors when making a pretrial detention determination: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. See 18 U.S.C. § 3142(g). 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 Fed.Appx. 598, 600 (10th Cir. 2009) (quoting United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989)). After considering the § 3142(g) factors, the Court finds by clear-and-convincing evidence that the Court cannot fashion conditions to mitigate Defendant's danger to the community.

         A. Nature and Circumstances of the Offense Charged

         The first factor, the nature and circumstances of the charged offense, favors detention. Defendant is charged with Possession of Child Pornography, contrary to 18 U.S.C. § 2252(a)(4)(b), an offense that involves minor victims, see 18 U.S.C. § 3142(g)(1), and is statutorily a crime of violence. See 18 U.S.C. § 3156(a)(4)(C) (defining “crime of violence” to cover any felony violation of Chapter 110 of Title 18, including 18 U.S.C. § 2252(a)(4)(B)).

         In United States v. Crisman, Judge Browning noted that “Congress stressed that the mere ‘existence of and traffic in child pornographic images creates the potential for many types of harm in the community and presents a clear and present danger to all children.'” No. CR 11- 2281-JB, 2011 WL 5822731*16 (D.N.M. Nov. 15, 2011) (quoting Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121, 110 Stat. at 3009-27). Indeed, the United States Supreme Court recently reaffirmed the “devastating harm caused by child pornography, ” noting that the demand for child pornography harms children in part because it drives production, which involves abuse to children, but also because “child pornography is a permanent record of the depicted child's abuse, and the harm to the child is exacerbated by [its] circulation.” Paroline v. United States, et al., 134 S.Ct. 1710, 1716-17 (2014) (internal quotation marks and citation omitted); see also United States v. Rosenschein, No. 16-CR-4571, 2017 WL 3600739 * 7 (D.N.M. Jan. 6, 2017) (“Even if the Court considers only the possession [of child pornography] charge, being a ‘consumer' of child pornography involving prepubescent children encourages others to sexually abuse young children to create pornography.”). As the Supreme Court pointed out, the internet has allowed for ease in trading of child pornography, causing “‘the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, [to] grow() exponentially.'” Paroline. 134 S.Ct. at 1717 (quoting United States Sentencing Comm'n, P. Saris et al., Federal Child Pornography Offenses 3 (2012)).

         The evidence in this case indicates that the search of Defendant's home produced over 700 images of child pornography, more than 300 of which were located on the laptop computer cited in the sole charge against Defendant, and approximately ten child pornography videos. See Transcript, Doc. 33, 13:24-14:14. Moreover, some of the images found in Defendant's possession were from a series of images attributable to a specific individual victim. See Memorandum Opinion and Order, Doc. 221, at 1-2; Sentencing Transcript, Doc. 238, ...


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