United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
Scott Edward Riggs was ordered detained pending trial by
Magistrate Judge Cheryl A. Eifert, pursuant to 18 U.S.C.
§3142(e), on December 13, 2018. Det. Order, ECF
No. 23. Defendant now moves the Court to revoke the detention
order and release him on bond. Mot. Revoke Det.
Order, ECF No. 27. For the foregoing reasons, the Court
DENIES Defendant's motion to revoke the
detention order, and ORDERS the defendant
remain detained under the existing detention order.
April 2018, Special Agent Michael Fleener of the Department
of Homeland Security received an investigative referral from
an Australian police department about a foreign website being
operated by an individual believed to be residing in West
Virginia. Transcript I, p. 9, ECF No. 27-1. The
website contained several folders of sexually explicit images
of women in folders labelled “Wife and I”,
“Sister-in-law”, “Spy on my sister”,
“Spy on my daughter's friend preview”, and
“Spy on my daughter's friend full”.
Id. at 9. A total of twenty-six image files were
contained within the two “Spy on my daughter's
friend” folders. Id. at 11. These images
appeared to be of a naked teenage girl, approximately twelve
to fifteen years' old, getting in and out of a shower.
Id. These images included pictures where the
minor's vagina was visible. Id. The images were
believed to have been uploaded to the website in January
2018. Id. During his investigation, Agent Fleener
identified the defendant as the suspected source of the
images. Id. at 12.
September 19, 2018, Agent Fleener interviewed the defendant
at his home in Huntington. Id. Agent Fleener showed
the defendant several of the images contained in the folders
on the website, and the defendant acknowledged that some of
the sexually explicit images were of he and his wife, posted
without his wife's knowledge. Id. at 13. The
defendant further admitted to posting the twenty-six images
files of the minor, which he captured with a phone hidden
underneath a cabinet in the bathroom. Id. at 14.
Agent Fleener verified the identity of the minor in those
images and determined she was thirteen years old at the time
the video was made. Id. at 16.
October 23, 2018, a federal grand jury returned a two-count
indictment against the defendant, charging him with the
production of child pornography and distribution of child
pornography in violation of 18 U.S.C. §§ 2251(a)
and 2252A(a)(2). Indictment, ECF No. 1. On October
30, 2018, the defendant was taken into custody pursuant to an
arrest warrant. Initial Appearance, ECF No. 9. On
November 2, 2018, the defendant had his initial appearance
before Magistrate Judge Eifert. Id. Magistrate Judge
Eifert continued the detention hearing until a home
inspection could be conducted. Transcript I, at 45.
November 16, 2018, the U.S. Probation Office completed an
inspection of the defendant's home in Huntington and
filed a report on November 27, 2018. Home Rep., p.
1, ECF No. 27-2. While the Probation Office found the
residence suitable for electronic monitoring, it recommended
detention based on community safety concerns. Id. at
December 6, 2018, Magistrate Judge Eifert reconvened the
detention hearing. Transcript II, ECF No. 27-3. On
December 13, 2018. Magistrate Judge Eifert issued an order
detaining the defendant pending trial, finding by clear and
convincing evidence that no conditions of release would
assure the safety of the community. Det. Order, at
2. Subsequently, the defendant moved this Court to revoke the
detention order and release the defendant on bond. Mot.
Revoke Det. Order.
the district court acts on a motion to revoke or amend a
magistrate judge's pretrial detention order, the district
court acts de novo and must make an independent
determination of the proper pretrial detention or conditions
of release.” United States v. Covington, No.
2:14-CR-00006, 2014 WL 504880, at *3-4 (S.D. W.Va. Feb. 7,
2014) (citing United States v. Stewart, 19 Fed.Appx.
46, 48 (4th Cir. 2001) (per curium) (unpublished) (internal
citations omitted); cf. United States v. Shrader,
1:09-cr-00270, 2010 WL 503092 *1 (S.D.W.Va. Feb.8, 2010)
(observing a district court need not hold a second detention
hearing when reviewing a motion under 18 U.S.C. §
after a detention hearing, a court 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, ” the court must
detain the defendant before trial. 18 U .S.C. §
3142(e)(1). “[T]he lack of reasonable assurance of
either the defendant's appearance or the safety of others
or the community, is sufficient; both are not
required.” Stewart, 19 Fed.Appx. at 48
there exists a rebuttable presumption that no such condition
or combination of conditions exist if there is probable cause
the defendant committed an offense involving a minor victim
under sections 2251A and 2252A(a)(2). 18 U.S.C.A. §
3142(e)(3). “A defendant must produce only ‘some
evidence' to rebut this presumption.” United
States v. Putillion, No. 2:18-CR-00186, 2018 WL 5784066,
at *3 (S.D. W.Va. Nov. 5, 2018) (quoting United States v.
Jessup, 757 F.2d 378, 384 (1st Cir. 1985)). However,
this presumption does not disappear once rebutted. The
rebutted presumption has evidentiary weight and “is
incorporated into the § 3142(g) factors considered by
the court when determining whether conditions of release can
be fashioned or whether the defendant must be detained
pretrial.” Id. at 384. “[T]he
presumption requires the court to draw an inference of
dangerousness when probable cause is established that
defendant committed a predicate offense, an inference whose
strength depends on all the evidence before the Court.”
determining a defendant's suitability for bond, a court
must take into account the following factors: (1) the nature
and circumstances of the offense charged, including whether
the offense involves a minor victim or a crime of violence;
(2) the weight of the evidence against the person; (3) the
history and characteristics of the person, including their
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 (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).