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United States v. Burgess

United States District Court, E.D. Virginia, Norfolk Division

December 19, 2017

UNITED STATES OF AMERICA
v.
STUART AARON BURGESS, Defendant.

          MEMORANDUM OPINION

          Robert G. Doumar, United States District Judge

         On December 18, 2017, the parties appeared before the Court for a hearing to reconsider whether Stuart Aaron Burgess ("Defendant") should be released pending trial pursuant to 18 U.S.C. § 3145(a). For the reasons stated herein, the Court FOUND that certain conditions will reasonably assure the safety of the community and the Defendant's appearance at trial and thus REINSTATED the release order entered on December 8, 2017, ECF No. 10, with one additional condition of release imposed, as set forth below.

         I. PROCEDURAL HISTORY

         On November 1, 2017, a federal grand jury sitting in Norfolk named Defendant in a five-count criminal indictment charging him four counts of Receipt of Images of Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. § 2252(a)(2) (Counts 1-4), and one count of Possession of Images of Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count 5). ECF No. 1. On December 4, 2017, Defendant made his initial appearance in this Court, and Magistrate Judge Lawrence R. Leonard entered a temporary order of detention. ECF No. 5.

         On December 6, 2017, Defendant appeared before Magistrate Judge Douglas E. Miller for a detention hearing. ECF No. 8. Judge Miller ultimately denied the Government's motion for pretrial detention and ordered Defendant's release on a $5, 000 unsecured bond with several conditions, including travel restrictions, electronic monitoring, and appointment of a third-party custodian. See Order Setting Conditions of Release ("Release Order"), ECF No. 10.

         On December 8, 2017, Defendant executed the $5, 000 unsecured bond, which was signed by the third-party custodian, and Defendant was released from custody. See ECF No. 11. On that same day, the Government filed an Emergency Motion for Stay of Release Order ("Motion to Stay") and Revocation of Release Order ("Motion to Revoke") pursuant to 18 U.S.C. § 3145. ECF No. 9. However, by the time such motion was before the Court for disposition, Defendant had already been released.

         On December 11, 2017, the Court granted the Government's Emergency Motion to Revoke Defendant's Release Order but directed the Clerk to set a hearing to "reconsider whether there are any conditions on which the Defendant can be released." ECF No. 12. Such hearing was set for December 18, 2017. See ECF No. 13. On December 15, 2017, Defendant filed a response in opposition to the Government's Motion to Revoke Release Order ("Resp."). ECF No. 18. On December 18, 2017, the parties appeared before the Court for a hearing to reconsider whether Defendant should be released pending trial under certain conditions.

         II. APPLICABLE LAW

         The Bail Reform Act of 1984 ("Act"), 18 U.S.C. § 3141 et seq., permits a district court to review a magistrate judge's release order on motion by the government. 18 U.S.C. § 3145(a). "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. Stewart, 19 Fed.App'x 46, 48 (4th Cir. 2001) (emphasis added). "However, the district court need not conduct a new pretrial detention hearing; rather, the court may base its decision on the transcript of the original detention hearing and any additional evidence proffered by counsel." United States v. Boyd, 484 F.Supp.2d 486, 487 (E.D. Va. 2007) (internal citations omitted).

         Where, as here, the defendant has been charged with a crime that involves a minor victim, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the defendant or the safety of any other person and the community. 18 U.S.C. § 3142(e)(3)(E). The defendant may rebut that presumption by coming forward with evidence to suggest that the presumption is unwarranted in his particular case. See United States v. Boyd, 484 F.Supp. 2d. 486, 488 (E.D. Va. 2007). If the defendant presents such evidence, the burden shifts back to the government to (1) prove by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the defendant's appearance at trial or to (2) prove by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community. See 18 U.S.C. § 3142(e)-(f); see also United States v. Mallory, No. 1:17-CR-154, 2017 WL 3284890, at *6 (E.D. Va. July 7, 2017) (reciting the Government's different burdens of proof with respect to dangerousness and risk of flight).

         The Act provides several factors for the Court to consider when determining whether the Government has met its burden. 18 U.S.C. § 3142(g). These factors include:

(1) the nature and circumstance 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, ...

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