IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2008
No. 08-30670 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARK R. EMMONS
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:08-CR-57-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Mark R. Emmons appeals from a pretrial-detention order.
Originally, Emmons was indicted in the Western District of Louisiana on
two counts of attempted production of child pornography, one count of using a
facility in interstate commerce to attempt to coerce a minor to engage in criminal
sexual acts, and one count of attempting to distribute child pornography to a
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-30670
minor. Upon his arrest in Connecticut, the Government filed in the Connecticut
district court a motion for pretrial detention.
The Government contended in the motion that: (1) Emmons’ case was
eligible for pretrial detention because it involved a crime of violence and because
there was a serious risk that Emmons would flee; (2) the court should detain
Emmons because there were no conditions of release which would reasonably
assure Emmons’ appearance or the safety of the community; and (3) there was
a rebuttable presumption against release, pursuant to 18 U.S.C. § 3142(e),
because there was probable cause to believe that Emmons had committed an
offense involving a minor victim.
After a detention hearing, the Connecticut district court ordered that
Emmons be released on $500,000 bond, subject to numerous conditions, some of
which restricted his ability to travel or access a computer.
Subsequently, a superseding indictment charged Emmons with two counts
of attempted production of child pornography, in violation of 18 U.S.C. § 2252(a),
and four counts of using a facility in interstate commerce to attempt to coerce a
minor to engage in criminal sexual acts, in violation of 18 U.S.C. § 2422(b). At
Emmons’ arraignment in the Western District of Louisiana, the Government
moved for detention because of Emmons’ endangerment of the community and
because of the new charges filed in the superseding indictment. A magistrate
judge denied the Government’s motion because there already had been an
extensive detention hearing in Connecticut and the conditions set at that
hearing seemed appropriate under the circumstances.
The Government appealed the magistrate judge’s order to the district
court, asserting: district courts have authority to review other courts’ orders;
and new evidence supporting the superseding indictment provided a basis for a
new hearing. The Government contended that all of the charges in both the
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No. 08-30670
original and superseding indictments entailed a presumption in favor of
detention, pursuant to 18 U.S.C. § 3142(e).
At a subsequent detention hearing, the district court, at the Government’s
request and without objection by Emmons, took judicial notice of “the fact that
[§ 3142] specifically gives a rebuttable presumption that detention is appropriate
in cases for which the defendant is charged with these crimes”. After
considering lengthy testimony and evidence concerning Emmons’ attempts to
initiate sexual acts with undercover police officers posing as minors using
internet chat rooms, the district court stated at the hearing that Emmons had
not presented sufficient evidence to overcome the presumption in favor of
pretrial detention. In so ruling, the district court determined that the probation
office could not completely prevent Emmons from finding another computer to
contact a minor. (Nothing in the record indicates that the district court filed a
written order concerning its order of detention.) Emmons appealed. See 18
U.S.C. § 3145(c).
There is some question whether the district court was required to “include
written findings of fact and a written statement of the reasons for detention”
under the terms of 18 U.S.C. § 3141(i)(1), despite Federal Rule of Appellate
Procedure 9(a)’s allowing the district court to enter its reasons for a pretrial-
detention order either “in writing, or orally on the record”. This question
remains for another day, however, because Emmons does not raise this issue on
appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (issues and
arguments not briefed adequately are waived).
Regarding the substance of the detention order, a person must be released
pending trial unless a judicial officer finds by clear and convincing evidence 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); see United States v. Fortna, 769 F.2d 243, 250 (5th Cir.
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1985). There is a rebuttable presumption, however, that no conditions will
reasonably assure the person’s appearance or the safety of the community if the
judicial officer finds there is probable cause to believe the person committed “an
offense involving a minor victim under [18 U.S.C. §§ 2251 or 2422]”. 18 U.S.C.
§ 3142(e).
In appealing from the pretrial-detention order, Emmons contends, for the
first time on appeal, that a rebuttable presumption in favor of detention should
not have been applied because his crime involved agents rather than actual
minors. In the alternative, he contends that, even if that presumption did apply,
he had already agreed to conditions of release that were sufficient to protect the
community.
Generally, absent an error of law, this court will uphold a district court’s
pretrial detention order if it is supported by the proceedings in that court, a
standard of review that this court equates to an abuse-of-discretion standard.
United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992). Under this
standard, we look to whether “the evidence as a whole supports the conclusions
of the proceedings below”. Id.
Concerning the rebuttable-presumption issue, Emmons admits he did not
object to the district court’s application of that presumption in favor of detention.
We review the district court’s application of the that presumption, therefore,
only for plain error. See United States v. Giordano, 41 F. App’x 522, 522-23 (2d
Cir. 2002) (reviewing application of rebuttable presumption for plain error (if at
all) where defendant failed to object to it at detention hearing); United States v.
Guebara, 15 F. App’x 584, 589 (10th Cir. 2001) (reviewing issue that was not
raised at bond revocation proceedings for plain error). Under plain-error review,
in the light of the lack of authority in this, or any other, circuit regarding
whether the rebuttable presumption is limited only to cases whose facts involve
actual minor victims (again, Emmons’ conduct involved undercover agents), the
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No. 08-30670
district court could not have plainly erred in applying the rebuttable
presumption in favor of detention pursuant to § 3142(e). See United States v.
Hull, 160 F.3d 265, 272 (5th Cir. 1998) (holding that an error whose
identification requires the extension of precedent is not plain).
As discussed, Emmons’ alternative contention is that, even if the
rebuttable presumption applies, he overcame it because he had agreed to
conditions that would prevent him from accessing a computer and because there
was no evidence that he would violate those conditions. The district court ruled
that Emmons could not rebut the presumption based on its finding the probation
office could not prevent Emmons from accessing another computer to contact a
minor. Given the record evidence of Emmons’ extensive and persistent efforts
to engage in prohibited conduct with minors, we hold that the district court’s
ruling is supported by the proceeding below and did not, therefore, constitute an
abuse of discretion.
AFFIRMED.
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