United States v. Renander

          Alecia Lynne Riewerts, U.S. Attorney's Office, Denver, CO, for Plaintiff.

          Michael James Sheehan, Michael J. Sheehan, Attorney at Law, Centennial, CO, for Defendant.

         ORDER AFFIRMING MAGISTRATE JUDGE'S DETENTION ORDER

         William J. Martinez, United States District Judge.

         The Government charges Defendant Jason Renander ("Renander") with three counts of producing child pornography in violation of 18 U.S.C. § 2251(a) & (e), and one count of transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1) & (b)(1). (See ECF No. 1.)

         On December 4, 2019, U.S. Magistrate Judge Scott T. Varholak ordered that Renander be detained pending trial. (ECF No. 13.) That prompted the motion currently before the Court, namely, Renander's Motion for Revocation of Detention Order ("Motion"). (ECF No. 20.) For the reasons explained below, the Court denies the Motion.

         I. DETENTION PRESUMPTIONS & STANDARD OF REVIEW

         A. Initial Standard

         The Court "shall order the detention of the [defendant] before trial" if the Court finds, after a hearing, "that no condition or

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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). "Subject to rebuttal by the [defendant], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed * * * an offense involving a minor victim under section[s]... 2251 [or] 2252A(a)(1) ... of [title 18 of the U.S. Code]." Id. § 3142(e)(3)(E). This presumption applies to Renander given the charges against him.

         "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." United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991)

         "The facts the judicial officer uses to support a finding ... that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence." Id. § 3142(f)(2). As for risk of flight, the burden is preponderance of the evidence. United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). The Government bears the burden in both cases. Id.

         The factors the Court "shall" consider when deciding whether to grant pretrial release are:

(1) the nature and circumstances of the offense charged, including whether the offense ... involves a minor victim ...;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including—

(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g). Also, the presumption of detention, even if countered by the defendant with adequate evidence, "remains a factor for consideration by the district court in determining whether to release or detain." Stricklin, 932 F.2d at 1355.

         B. Review

         "If a person is ordered detained by a magistrate judge, ... the person may file, with the [district court], a motion for revocation or amendment of the order." 18 U.S.C. § 3145(b). The district judge then reviews the magistrate judge's decision de novo. Cisneros, 328 F.3d at 616 n.1.

De novo review, however, does not necessarily mean holding an evidentiary hearing. Although a district court may start from scratch and take evidence, it may also review the evidence that was before the magistrate judge and make its own independent determination as to whether the magistrate ...