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United States v. Riggs

United States District Court, S.D. West Virginia, Huntington Division

January 31, 2019




         Defendant 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.

         I. BACKGROUND

         In 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.

         On 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.

         On 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.

         On 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 2.

         On 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.


         “When 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. § 3145(b)).

         If, 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 (citations omitted).

         Additionally, 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.” Id.

         In 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).

         III. ...

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