United States v. Livesay

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
UNITED STATES OF AMERICA )
)
v. ) Magistrate Case No. 19-0016 (DAR)
)
DUSTIN MICHAEL LIVESAY, )
)
Defendant. )
)

MEMORANDUM OPINION AND ORDER

Defendant Dustin Michael Livesay (“Defendant”), through his counsel, has requested that

he be temporarily released from pretrial detention due to the ongoing coronavirus pandemic. See

Emergency Mot. for Immediate Release to Home Confinement (“Emergency Motion”), ECF No.

34. Upon consideration of the relevant filings, the Emergency Motion is Denied.1

I. Background

Defendant is charged by criminal complaint with one count of knowingly receiving and

distributing child pornography, in violation of 18 U.S.C. § 2252(a)(2). See Crim. Complaint

(“Compl.”), ECF No. 1. Defendant was arrested in January 2019 and he appeared before a

magistrate judge in the Eastern District of Missouri. See Rule 5(c)(3) Documents at 1-3, ECF

1
The relevant filings are: Emergency Motion; the Government’s Opposition to
Defendant’s Request for Review of Order of Detention (“Gov’s Opp’n”), ECF No. 35;
Defendant’s Reply to Government’s Opposition to Defendant’s Emergency Motion for
Immediate Release to Home Confinement (“Def’s Reply”), ECF No. 36; Defendant’s
Supplement to Defendant’s Emergency Motion for Immediate Release to Home Confinement
(“Def’s Suppl.”), ECF No. 43; Sealed Exhibits to Def’s Suppl., ECF No. 44, Government’s
Opposition to Defendant’s Supplemental Motion for Emergency Release (Gov’s Opp’n to Def’s
Suppl.”), ECF No. 45; Defendant’s Second Supplement to Defendant’s Emergency Motion for
Immediate Release to Home Confinement (“Def’s Second Suppl.”), ECF No. 46; and June 16,
2020 Pretrial Services Report (“June 2020 Pretrial Report”), ECF No. 47.
No. 2. Defendant was then transferred to the District of Columbia, and he had his initial

appearance in this jurisdiction before Magistrate Judge G. Michael Harvey on February 28, 2019.

See Feb. 28, 2019 Minute Entry. At that time, Magistrate Judge Harvey granted the

government’s oral motion for a detention hearing. See id. The detention hearing has been

continued upon Defendant’s request or with his consent since that time, and he has remained

held without bond pending trial.2 On March 13, 2020, the President of the United States

declared a national emergency due to the novel coronavirus, a virus that causes the COVID-19

disease. See Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020). Thereafter,

Defendant filed the pending Emergency Motion requesting that he be released from pretrial

detention to home confinement “until such time that the D.C. Department of Corrections can

assure inmates that the facility is reasonably free from exposure to the virus.” Emergency

Motion at 1. He proffered that he has Type II diabetes3 and asthma, and that these conditions

make him more susceptible to the coronavirus. See id. The United States opposed this request,

arguing that Defendant’s release was not warranted by the Bail Reform Act under either the four

statutory factors or the temporary release provision. Gov’s Opp’n at 3–6, 10 n.2. In response,

2
See March 9, 2019 Minute Entry; March 19, 2019 Minute Entry; May 1, 2019 Minute
Entry; June 11, 2019 Minute Entry; Motion to Continue, ECF No. 5; July 17, 2019 Order;
Motion to Continue, ECF No. 8; Aug. 13, 2019 Order, ECF No. 9; Motion to Continue, ECF No.
10; Sept. 17, 2019 Order, ECF No. 11; Motion to Continue, ECF No. 13; Oct. 15, 2019 Order,
ECF No. 14; Motion to Continue, ECF No. 15; Nov. 19, 2019 Order, ECF no. 16; Motion to
Continue, ECF No. 17; Dec. 3, 2019 Order, ECF No. 18; Consent Motion, ECF No. 19; Dec. 18,
2019 Order, ECF No. 20; Motion to Continue, ECF No. 21; Jan. 3, 2020 Minute Order; Motion
to Continue, ECF No. 23; Feb. 3, 2020 Order, ECF No. 24; Motion to Continue, ECF No. 26;
Feb. 21, 2020 Order, ECF No. 28; Motion to Continue, ECF No. 29; March 10, 202 Order, ECF
No. 30; Motion to Continue, ECF No. 31; March 17, 2020 Order, ECF No. 33; Motion to
Continue, ECF No. 37; April 3, 2020 Order, ECF No. 39; Motion to Continue, ECF No. 40; May
5, 2020 Order, ECF No. 42; June 9, 2020 Minute Entry.
3
The Emergency Motion stated that Defendant has Type I diabetes, but later filings
indicate that he has Type II diabetes. See, e.g., Def.’s Suppl. at 5.
2
Defendant clarified that he was not seeking a detention hearing, and also argued that his

continued detention at the D.C. Jail violated his constitutional rights. Def.’s Reply at 1.

On May 26, 2020, Defendant filed a supplement to his motion, noting that he had

contracted the coronavirus. Def.’s Suppl. at 1. Defendant again indicated that he requested his

release pursuant to 18 U.S.C. § 3142(i), which provides for “the temporary release of the person”

in certain circumstances. The United States continued to oppose Defendant’s request for release.

See Gov’s Opp’n to Def’s Suppl. The undersigned began a hearing on Defendant’s Emergency

Motion on June 9, 2020, and the hearing was continued to and concluded on June 15, 2020. See

June 9, 2020 Minute Entry; June 15, 2020 Minute Entry. During the hearings, counsel for

Defendant reiterated that the request was for Defendant’s temporary release during the

coronavirus pandemic, but agreed that the matter could be considered a detention hearing. At the

conclusion of the hearing the undersigned took the Emergency Motion under advisement. In

addition, the undersigned requested that an officer with the Pretrial Services Agency provide the

Court with information on whether Pretrial Services in Missouri—where Defendant requested to

reside—had the capability of monitoring Defendant’s electronic devices. See June 15, 2020

Minute Entry. The Pretrial Services Agency filed a report responding to that request on June 16,

2020. See June 2020 Pretrial Report.

II. Legal Standard

The Bail Reform Act provides for the detention of certain individuals pending trial. See

18 U.S.C. § 3142. Defendant is charged with a violation of 18 U.S.C. § 2252, which qualifies as

a crime of violence under the Bail Reform Act. See 18 U.S.C. § 3156(a)(4)(C). As such, he falls

within the category of defendants for whom the United States may request a detention hearing.

See 18 U.S.C. § 3142(f)(2)(A) (a judicial officer shall hold a detention hearing upon a motion by

3
the government where a defendant is charged with a crime of violence). In addition, if there is

probable cause to find that Defendant committed an offense in violation of 18 U.S.C. §

2252(a)(2), a rebuttable presumption that no such release conditions exist is triggered. See 18

U.S.C. § 3142(e)(3)(E). At the conclusion of a detention hearing, if “the 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, such judicial officer

shall order the detention of the person before trial.” 18 U.S.C. § 3142(e)(1). If adequate

conditions can be imposed, the defendant will be released pursuant to 18 U.S.C. § 3142(c).

A detention decision based upon the defendant’s dangerousness to the community must

be supported by “clear and convincing evidence.” 18 U.S.C. § 3142(f); see United States v.

Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996) (per curiam). In contrast, a detention decision based

upon a finding that no set of conditions will reasonably assure the defendant’s appearance in

court “need only be supported by a ‘preponderance of the evidence.’” United States v. Simpkins,

826 F.2d 94, 96 (D.C. Cir. 1987) (quoting United States v. Vortis, 785 F.2d 327, 328–29 (D.C.

Cir. 1986) (per curiam)). In determining whether a defendant should be released, the Court is to

consider four statutory factors: “(1) the nature and circumstances of the offense charged . . . ;

(2) the weight of the evidence against the person; (3) the history and characteristics of the

person, . . . ; 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). Additionally, another

provision of the Bail Reform Act states that a “judicial officer may, by subsequent order, permit

the temporary release of the person, in the custody of a United States marshal or another

appropriate person, to the extent that the judicial officer determines such release to be necessary

4
for preparation of the person’s defense or for another compelling reason.” 18 U.S.C. § 3142(i)

(emphasis added).

III. Discussion

Defendant initially requested that he be released pursuant to 18 U.S.C. § 3142(i), but

subsequently argued for release pending trial pursuant to 18 U.S.C. § 3142(c) as an alternative. As

these statutory provisions set different standards for release and detention, the Court will first address

the proper standards for analyzing Defendant’s request, and will then discuss why Defendant should

not be released under either provision.

A. Statutory Provisions Governing Release

The first issue before the Court is whether Defendant’s release request should be

evaluated under the four Bail Reform Act factors to determine whether release pending trial is

justified under 18 U.S.C. § 3142(c), or under the temporary release provision codified at 18

U.S.C. § 3142(i).

During the hearing on June 15, 2020, the parties referred to another matter pending in this

court, United States v. Dhavale (“Dhavale”), which was in a similar procedural posture as the

instant matter when that defendant requested his release. See United States v. Dhavale, No. 19-

MJ-00092, 2020 WL 1935544 (D.D.C. Apr. 21, 2020). As in the instant matter, the defendant in

Dhavale conceded to his pretrial detention without having a detention hearing, until the time he

requested his release due to the coronavirus pandemic. See id. at 1. The magistrate judge who

heard the motion “construed defendant’s motion as requesting: (1) defendant’s release pending a

detention hearing, or (2), in the alternative, an immediate detention hearing” and with no

objection from the United States, held a detention hearing. Id. at 2 (internal citation omitted).

The magistrate judge ordered the defendant’s release with conditions after weighing the statutory

Bail Reform Act factors. See id. The United States appealed, and Chief Judge Howell found

5
that defendant should be detained pending trial in accordance with 18 U.S.C. § 3142(e), but that

he should be temporarily released in accordance with 18 U.S.C. § 3142(i). See id. at 3.

The undersigned finds that the instant request for temporary release is properly brought

only after an initial detention decision is made. The provision at 18 U.S.C. § 3142(i) authorizing

a defendant’s temporary release should be read in the context of the other requirements outlined

in that sub-section. The heading of sub-section (i) is “Contents of detention order,” and the

provision specifies the information that must be included “[i]n a detention order issued under

subsection (e).” 18 U.S.C. § 314(i). In addition, the language providing for the temporary

release of a defendant is preceded by: “[t]he judicial officer may, by subsequent order . . .” Id.

(emphasis added). Read fully, subsection (i) authorizes the release of a defendant who has

already had a detention hearing. As such, the undersigned construes the hearings on June 9 and

15, 2020 as having two components: first a detention hearing, and second, if the Court concluded

that Defendant should be held without bond pending trial, a hearing on whether Defendant

should temporarily be released. To the extent the docket reflects that the case was called for a

different type of hearing, it shall be edited accordingly. See Fed. R. Cr. P. 36. Defendant’s

arguments for release fail under each standard.

i. Release Under 18 U.S.C. § 3142(c)

In considering whether Defendant should be detained pending trial, the undersigned

evaluated and weighed the four Bail Reform Act factors. Three of the four factors favor pretrial

detention, and when the factors are weighed together the undersigned finds that detention

pending trial is warranted.

Defendant is charged with an offense that generally triggers a rebuttable presumption of

detention. As in Dhavale, Defendant has not had a preliminary hearing through which a judicial

6
officer could determine whether there was probable cause that Defendant committed the charged

offense. See Order, United States v. Dhavale, No. 19-mj-0092 (June 15, 2020), ECF No. 62

(continuing the scheduled preliminary hearing to a later date). However, unlike in Dhavale,

Defendant has not conceded that probable cause exists which would trigger the rebuttable

presumption. See Dhavale, 2020 WL 1935544, at *3. Thus, the undersigned declines to apply

the rebuttable presumption of detention in the instant matter, but finds that, nevertheless,

Defendant’s detention pending trial is warranted.

The nature and circumstances of the charged offense weighs heavily in favor of pretrial

detention. Defendant is charged with receiving and distributing child pornography. That is a

very serious offense which victimizes the most vulnerable members of society. This charge

carries a mandatory minimum term of incarceration of five years, with a maximum term of

twenty years; the severity of that penalty reflects the gravity of the offense. Defendant is

accused of participating in multiple online chat groups in which child pornography was shared.

He also allegedly sent multiple pornographic images of children to members of the online group

and directly to an undercover officer who was in the group. See Statement of Offense

(“Statement of Offense”) at 1–2, ECF No. 1-1. In addition, Defendant told the undercover

officer that he had sexually abused his minor cousin and sent a non-pornographic image of his

purported cousin to the undercover agent. Id. at 1–2. Notably, Defendant also allegedly sent a

link to the undercover officer that had dozens of videos depicting the sexual abuse of young

children, including toddlers, as a “down payment” to try to solicit a nude picture of the

undercover’s purported minor child. Id. at 2. Although Defendant is not charged with an

offense relating to the production of child pornography, this request shows that his alleged

involvement in child victimization went beyond the passive viewing of child pornography and

7
included soliciting the production of it. For these reasons, this factor weighs heavily in favor of

pretrial detention.

The weight of the evidence against Defendant is also strong, thus the second statutory

factor favors pretrial detention. As discussed above, Defendant came to the attention of law

enforcement through his involvement in an online group involved in sharing child pornography.

Through various law enforcement techniques, officers were able to connect Defendant to the

account that had sent the images and link to the undercover officer. Id. at 2-4. When questioned

during a non-custodial interview, Defendant admitted to saving and sharing child pornography,

including the images and link that was sent to the undercover officer. Id. at 4. The combined

weight of the electronic evidence against Defendant and his admissions to law enforcement make

this factor weigh heavily in favor of pretrial detention.

Defendant’s history and characteristics favor release. Defendant is 29 years old and has

no prior convictions and only one prior arrest.4 See Mar. 2019 Pretrial Report, at 1. He also

appears to have been employed at the time of his arrest. See id. at 2–3 (noting that he was

employed by MSC Trucking as of his interview on January 25, 2019); Compl. at 4 (Defendant’s

mother advised law enforcement that Defendant was a truck driver). Defendant also has medical

conditions—Type II Diabetes and asthma—at least one of which makes him more susceptible to

developing a severe case of COVID-19.5 In addition, Defendant has unfortunately contracted the

4
The Pretrial Services Report indicates that Defendant is 28 years old, but the report was
filed in March of 2019 and Defendant’s reported birth date indicates that he is now 29 years old.
See Mar. 1, 2019 Pretrial Services Report (“Mar. 2019 Pretrial Report”), ECF No. 3.
5
See People of Any Age with Underlying Medical Conditions, CENTERS FOR DISEASE
CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last updated Dec. 29, 2020) (noting that
“[p]eople of any age with [Type 2 diabetes] are at increased risk of severe illness from COVID-
19,” and people who have moderate-to-severe asthma “might be at an increased risk for severe
illness from COVID-19.”) (last visited Jan. 29, 2021).
8
coronavirus, although it is unclear from the record how his condition progressed. Defendant’s

underlying medical conditions, the uncertainty within the medical community as to whether the

coronavirus can be re-contracted,6 as well as the fact that he has now experienced the effects of

the coronavirus, suggest that he would be highly motivated to avoid re-incarceration and would

therefore be more likely to comply with release conditions. Further, Defendant proffered that

his father would allow him to stay at his residence in Missouri, and Pretrial Services verified that

Defendant’s father is a suitable custodian in accordance with their standards. For these reasons,

this factor favors release.

The nature and seriousness of the danger presented by Defendant’s release favors

detention. Defendant allegedly was an active member of multiple online groups that shared child

pornography, and he distributed pornographic images of minors to the group and directly to the

undercover officer. This undercover officer had presented himself to the online group as a dad

from the group and told Defendant that he had a minor child. Defendant attempted to solicit a

pornographic image of the undercover officer’s purported minor child; he sent a link containing

dozens of videos depicting the sexual abuse of children as a type of “down payment” to receive

such picture. This heightened involvement in the child victimization community and attempt to

procure a new pornographic image demonstrates the danger that Defendant’s release poses.

In addition, Defendant’s alleged crime is particularly insidious as it can be conducted in

private places, such as a home, as it is committed electronically. If Defendant were to be

released within the District of Columbia area, the local Pretrial Services Agency would be unable

6
See Clinical Questions about COVID-19: Questions and Answers, CENTERS FOR
DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html
(last updated Jan. 25, 2021) (“The immune response, including duration of immunity, to SARS-
CoV-2 infection is not yet understood. Based on what we know from other viruses, including
common human coronaviruses, some reinfections are expected.”) (last visited Jan. 29, 2021)
(hereinafter CENTERS FOR DISEASE CONTROL AND PREVENTION).
9
to monitor his electronic devices or ensure he has no access to any, thus there is no feasible way

for the court to monitor his compliance with release conditions that would limit his ability to

engage in the viewing or sharing of child pornography. On the other hand, if Defendant were

released to his father’s residence in Missouri, the Pretrial Services Agency for the Eastern

District of Missouri would be able to monitor his electronic devices. See June 2020 Pretrial

Report at 2. Although these capabilities mitigate some of the risks associated with Defendant’s

release, due to the ubiquitous nature of electronic devices and the fact that the Pretrial Services

Agency in Missouri is not able to conduct in-home visits during the coronavirus pandemic, the

undersigned finds this insufficient to adequately mitigate the risk that Defendant’s release

presents to the community. See id.

Further, at the June 15, 2020 continued hearing, Defendant proposed that upon his release

he travel from the District of Columbia to Missouri with his father in a rented vehicle. This

unsupervised period of travel presents too great a risk that Defendant would engage in conduct

similar to that with which he is charged or he would be able to surreptitiously acquire an

electronic device for use at a later time. For these reasons, this factor also weighs in favor of

detention.

In sum, three factors weigh in favor of detention, and one factor weighs in favor of

release. On balance, the factors strongly favor Defendant’s detention pending trial. Therefore

the United States has carried its burden of demonstrating that no release condition or

combination of conditions would adequately assure the safety of the community if Defendant

10
were released, and the undersigned finds that Defendant should be held without bond pending

trial.

ii. Temporary Release Pursuant to 18 U.S.C. § 3142(i)

Having thus concluded that Defendant shall remain held without bond pending trial, the

next issue is whether his temporary release pursuant to 18 U.S.C. § 3142(i) is justified. Even

assuming that Defendant’s father is an “appropriate authority,” to whom Defendant could be

released, the undersigned finds that Defendant’s release—even temporarily—presents too great a

risk of danger to the community, thus his continued detention is warranted. 18 U.S.C. § 3142(i);

see also United States v. Lee, 451 F. Supp. 3d 1, 10 (D.D.C. 2020) (noting part of the statutory

analysis under 18 U.S.C. § 3142(i) was whether the proposed custodian was an “appropriate

person” under the statute and comparing two cases with divergent outcomes).

The burden of justifying his temporary release lies with Defendant. See Lee, 451 F.

Supp. at 5 (quoting United States v. Stephens, 447 F. Supp. 3d 63, 67 (S.D.N.Y. 2020)) (“It is

clear beyond cavil that ‘[a] defendant has the burden of showing that temporary release is

“necessary” under Section 3142(i).’”). Judges in this Circuit have taken varying approaches to

analyzing a request for temporary release. Compare, e.g., United States v. Davis, No. 19-CR-

292 (JDB), 2020 U.S. Dist. LEXIS 68317, *6 (D.D.C. Apr. 6, 2020) (quoting United States v.

Clark, 448 F. Supp. 3d 1152, 1157 (D. Kan. 2020)) (listing some specific factors courts have

considered in analyzing temporary release requests), with Dhavale, 2020 WL 1935544, at *6

(analyzing defendant’s health conditions and the situation at the detention facility). However,

the consensus appears to be that these assessments must be made on a case-by-case basis. See

e.g., United States v. Riggins, 456 F. Supp. 3d 138, 150 (D.D.C. 2020) (citing Lee, 451 F. Supp.

11
at 4, for the proposition that defendant had not presented “individualized reasons” for why he

should be released).

Defendant proffered that he has Type II diabetes and asthma and he cited to guidance

from the Center for Disease Control (CDC) for the proposition that “[t]hese are serious medical

conditions that make him susceptible to contracting the COVID-19 virus.” Emergency Motion 1

(internal citation omitted). Unfortunately, Defendant has also contracted COVID-19. See Def’s

Suppl. at 1. At this time, it is unclear whether an individual can contract the virus more than

once; thus in evaluating Defendant’s request, the undersigned took the risk of the coronavirus

into consideration as if it could again infect Defendant.7 Even assuming that these medical

conditions place Defendant at an increased risk to contract COVID-19, “where a defendant does

face a heightened risk, that is not the end of the analysis.” Davis, 2020 U.S. Dist. LEXIS 68317,

at *6. The ultimate question is “whether the defendant ‘has presented such compelling reasons

that effectively override or at least sufficiently counterbalance the findings that originally

justified the pretrial detention order.’” Id. at *9 (quoting United States v. Boatwright, No. 219-

cr-00301-GMN-DJA, ––– F.Supp.3d ––––, ––––, 2020 WL 1639855, at *5 (D. Nev. Apr. 2,

2020)).

At the hearing, Defendant asserted that he could “self-quarantine” in his father’s

basement and that he could be monitored there. However, Defendant’s alleged criminal conduct

was committed covertly and electronically, and could thus still be committed during his

isolation. In addition, Defendant’s release plan included his unsupervised travel from the

District of Columbia to Missouri; as outlined above, this travel presents too great a risk that he

would engage in similar conduct to that charged while traveling or would be able to covertly

7
CENTERS FOR DISEASE CONTROL AND PREVENTION, supra note 6.
12
acquire electronic devices that could be used unbeknownst to the Pretrial Services Office in

Missouri. Even taking the serious risk of the virus into consideration, the undersigned finds that

Defendant has not met his burden to justify his temporary release.

B. Release on Constitutional Grounds

Defendant also argued that “[e]ven if [his] pretrial detention were otherwise appropriate,

continuing to detain [him] would violate his rights under the Due Process Clause.” Def’s Suppl.

at 7. Although “it is a matter of precedent in this Circuit that the due process clause of the Fifth

Amendment bears upon the conditions of pretrial confinement,” the appropriate governing

standard in cases is less clear. Compare Lee, 451 F. Supp. 3d at 8 (quoting Wilson v. Seiter, 501

U.S. 294, 297 (1991)) (“conditions violate the Fifth Amendment only if they (1) rise to an

objective level of a ‘serious’ deprivation, and (2) result from the official’s subjective ‘deliberate

indifference,’” with Banks v. Booth, 459 F. Supp. 3d 143, 152 (D.D.C. 2020) (“a pre-trial

detainee need only show that prison conditions are objectively unreasonable in order to state a

claim under the due process clause”). In Banks, “various inmates of the District of Columbia’s

Department of Corrections (“DOC”) detained in the Central Detention Facility (“CDF”) and the

Correctional Treatment Facility (“CTF”)” filed suit against the Director and the Warden of the

DOC based on allegations that “the conditions of their confinement during the COVID-19

pandemic” were unconstitutional. Banks, 459 F. Supp. 3d at 147. In her memorandum opinion,

Judge Kollar-Kotelly found that, as to the plaintiffs’ Motion for a Temporary Restraining Order,

the plaintiffs who were detained pending trial were likely to succeed on the merits of their

constitutional claim under either the “objectively unreasonable” standard mentioned above

(specifically, that “the [d]efendants knew or should have known that the jail conditions posed an

excessive risk to [plaintiffs’] health”), or the standard that applies to defendants who were

13
detained after a conviction (specifically, “the jail conditions exposed [the plaintiffs] to an

unreasonable risk of serious damage to [plaintiffs’] health and that [d]efendants acted with

deliberate indifference in posing such a risk.” See id. at 151–153. Despite these findings, Judge

Kollar-Kotelly did not order any inmates to be released. Id. at 163. Notably, this opinion was

issued on April 19, 2020, just over two weeks after “the infection rate in DOC facilities was over

seven times the infection rate of the District of Columbia at large.” Id. at 153 (internal citation

omitted). Here, by the time Defendant’s matter was ripe for resolution—in that it was clear

which provision of the Bail Reform Act Defendant sought release under—the spread of the virus

within DOC had lessened significantly according to information received by the Court. Thus,

Defendant’s release is not warranted on constitutional grounds.

IV. Conclusion

Defendant is charged with a serious offense that presents a high risk of danger to some of

society’s most vulnerable members. The distribution of child pornography is an insidious crime

that repeatedly victimizes children each time the images are shared, and also creates an

environment in which new images may be generated. This second danger is clearly evidenced in

this matter as Defendant allegedly sent child pornography to someone he believed was also

interested in child pornography in the hopes that this would act as a “down payment,” for that

other person to send Defendant a picture of that person’s minor child. Statement of Offense at 2.

Given the prevalence of electronic devices and the seriousness of his pending charge, Defendant

shall be held without bond pending trial. In addition, even with his underlying medical

conditions and the specter of re-contracting the coronavirus, the undersigned finds that

Defendant has not “presented such compelling reasons that effectively override or at least

sufficiently counterbalance the findings that originally justified the pretrial detention order,’” and

14
therefore he should not be temporarily released. Davis, 2020 U.S. Dist. LEXIS 68317 at *9

(quoting Boatwright, 2020 WL 1639855, at *5))

DIRECTIONS REGARDING DETENTION

Defendant is ORDERED remanded to the custody of the Attorney General or to the Attorney

General’s designated representative for confinement in a corrections facility separate, to the extent

practicable, from persons awaiting or serving sentences or being held in custody pending appeal.

Defendant must be afforded reasonable opportunity for private consultation with defense counsel.

On order of a court of the United States or on request of an attorney for the government, the person in

charge of the corrections facility must deliver Defendant to a United States Marshal for the purpose

of any appearance in connection with a court proceeding

2021.01.29
January 29, 2021 15:40:15 -05'00'
______________________________
DATE Robin M. Meriweather
United States Magistrate Judge

15