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United States v. Stephen

United States District Court, N.D. Iowa, Cedar Rapids Division

April 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY SCOTT STEPHEN, Defendant.

          ORDER

          LINDA R. READER JUDGE

         I. INTRODUCTION

         The matter before the court is Defendant Gregory Scott Stephen's “Request for Review and Revocation of the Magistrate's Pretrial Detention Order” (“Motion”) (docket no. 3).

         II. RELEVANT PROCEDURAL HISTORY

         On March 13, 2018, a Complaint (18-MJ-74-LRR docket no. 2) was filed against Defendant alleging that he knowingly transported child pornography in violation of 18 U.S.C. § 2252(a)(1).[1] See Complaint at 1. On March 13, 2018, Defendant appeared before United States Chief Magistrate Judge C.J. Williams for an initial appearance. See March 13, 2018 Minute Entry (18-MJ-74-LRR docket no. 8). On March 21, 2018, Defendant appeared before United States Magistrate Judge Kelly K.E. Mahoney for a detention hearing (“Hearing”). See March 21, 2018 Minute Entry (18-MJ-74-LRR docket no. 21). Defendant appeared in court with his attorneys, Mark Brown and Mark Meyer. Assistant United States Attorney Anthony Morfitt represented the government. At the Hearing, Judge Mahoney ordered Defendant detained, and she subsequently entered an order to that effect on March 22, 2018. See Order of Detention Pending Trial (18-MJ-74-LRR docket no. 22). On April 4, 2018, Defendant filed the Motion. On April 11, 2018, the government filed a Resistance (docket no. 8). On April 16, 2018, Defendant filed a Reply (docket no. 9). The matter is fully submitted and ready for decision.

         III. STANDARD OF REVIEW

         A motion for revocation of a detention order is governed by 18 U.S.C. § 3145(b), which provides:

If a person is ordered detained by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.

18 U.S.C. § 3145(b). The court reviews a § 3145(b) motion de novo. See United States v. Maull, 773 F.2d 1479, 1481 (8th Cir. 1985) (en banc). The court is required to detain defendants prior to trial if the court “finds that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). “The facts the [court] uses to support a finding . . . that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.” Id. § 3142(f). In contrast, a finding “that no condition or set of conditions . . . will reasonably assure the defendant's appearance” must be supported by a preponderance of the evidence. United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985) (emphasis omitted).

         IV. ANALYSIS

         In the Motion, Defendant asserts that Judge Mahoney erred in finding that he poses a danger to the community. See Motion at 1-2. After conducting a de novo review of the record, including the Pretrial Services Report (18-MJ-74-LRR docket no. 12) and the transcript of the March 21, 2018 detention hearing (“Hearing Transcript”) (18-MJ-74-LRR docket no. 24), the court finds that Judge Mahoney's Order of Detention Pending Trial and her statements at the detention hearing accurately and thoroughly set forth the relevant facts and law. Additionally, for the reasons that follow, the court finds that detention is appropriate in this case.

         First, the court considers the nature and circumstances of the offense alleged, including whether the offense involved a minor victim. See 18 U.S.C. § 3142(g)(1). Felony offenses or charges involving minor victims carry a rebuttable presumption in favor of detention. See id. § 3142(e)(3). The Complaint alleges that Defendant knowingly transported child pornography in violation of 18 U.S.C. § 2252(a)(1). See Complaint at 1. Defendant allegedly created these pornographic images by placing hidden cameras in bathrooms, capturing nude images of unknowing minors. Hearing Transcript at 78-86. This factor weighs in favor of detention. See 18 U.S.C. § 3142(g)(1).

         Second, the court considers the weight of the evidence against Defendant. See id. § 3142(g)(2). At the hearing, Special Agent Ryan Kedley, of the Iowa Department of Public Safety, testified that a hidden recording device containing pictures of underage, nude minors was brought to law enforcement by a witness who found it in Defendant's home. Hearing Transcript at 71-74. In a pre-arrest interview, Defendant admitted to Special Agent Kedley that he had created those images in a hotel room in Lombard, Illinois. Id. at 78. During searches of Defendant's two residences, law enforcement found five additional covert recording devices. Id. at 84-86. Defendant, however, asserts that the evidence against him is not strong because, although, the testimony at the Hearing indicated that he possessed and transported images of nude, pubescent boys that depicted their genitals, “there was no claim that the nudity involved sexually explicit conduct.” Brief in Support of Motion (docket no. 3-1) at 6. Defendant argues that theses images, therefore, do not fall within the purview of the statute. Id. (citing 18 U.S.C. § 2252(a)(1) (criminalizing the transportation of images which depict, and whose production involved, “a minor engaging in sexually explicit conduct”)).

         Defendant is incorrect. “Sexually explicit conduct, ” for purposes of 18 U.S.C. § 2252, includes “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). The Eighth Circuit Court of Appeals has said that an image is lascivious, and therefore constitutes child pornography, “when the child is nude or partially clothed, when the focus of the depiction is the child's genitals or pubic area, and when the image is intended to elicit a sexual response in the viewer.” United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999). “The ‘lascivious exhibition' is not the work of the child, whose innocence is not in question, but of the producer or editor of the video.” Id. at 790; see also United States v. Holmes, 814 F.3d 1246, 1251-52 (11th Cir. 2016) (“[D]epictions of otherwise innocent conduct may in fact constitute a ‘lascivious exhibition of the genitals or pubic area' of a minor based on the actions of the individual creating the depiction.”). In this case, Defendant allegedly admitted to Special Agent Kedley that he recorded the images in question out of a “sexual curiosity” and that he became aroused while viewing them. Hearing Transcript ...


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