Two Cases Involving Charges of Child Pornography Possession Yield Divergent Bail Determinations in the NDNY

This month, two NDNY judges issued divergent bail decisions in cases involving charges of interstate receipt and possession of child pornography - charges that are deemed "crimes of violence," and therefore carry a rebuttable presumption that the defendant is a dual flight and danger risk.  The receipt charge also carries a mandatory minimum five years imprisonment.  While one judge ordered detention and the other release, notably, both judges agreed that bail may be appropriate in the absence of any evidence that the defendant directly engaged in child sexual abuse.

In the first, United States v. Colin, 2007 WL 4377723, 07 CR 512 (GLS) (N.D.N.Y, December 12, 2007), the court conducted a de novo bail hearing and revoked a magistrate's release order, finding that disturbing aspects of the defendant's interactions with young girls from the neighborhood indicated that he was a future danger to the community. In fact, the judge concluded, based on his own analysis of the evidence and without the benefit of any clinical testimony, that the defendant is a pedophile.  While the extent of the judge's research is admirable, and his conclusions may well be accurate, it is troubling to see a district judge reach a clinical diagnosis without expert testimony.  In addition, the judge's view, relying on the Second Circuit's decision in United States v. Brand, 467 F.3d 179 (2d Cir. 2006), that there is a link, whether causal or associational, between possession of child pornography and molestation of children is also not a foregone conclusion in the relevant scientific literature.  The Court in Brand had relied in part on a report from the BOP's sex offender treatment program at Butner, but reports generated from that program (which treats only volunteers and generally the most serious sex offenders in the BOP system) are likely to suffer from a sampling bias that overstates the association between downloading child pornography and molestation.  In any event, it is important to note the Colin judge's comment that "[i]f the only danger was that presumed by the child pornography charges, the court would be inclined to agree with the conditions of release recommended by [the magistrate] . . . home detention and restrictions on Colin's use of computers and the [i]nternet."   

In United States v. Reboux, 06 CR 451 (FJS), 2007 WL 4409801 (N.D.N.Y., December 14, 2007) - a case in a different procedural posture to Colin, since Reboux had actually pled guilty to receipt and possession of child pornography, thereby triggering automatic detention pending sentencing - the court found "exceptional reasons" justifying presentence release.  Given a paucity of Second Circuit case-law on the exceptional circumstances that may justify release in the post-conviction, pre-sentence context, the court applied a series of non-exhaustive factors set forth in a Ninth Circuit decision, United States v. Garcia, 340 F.3d 1013, 1019-21 (9th Cir. 2003).  The court concluded that exceptional circumstances existed in Reboux's case where he had been unusually cooperative with authorities, there was no evidence that he was a risk of flight or danger to the community, and "through his faith community and work environment, he has found a support system to aid him in a course of self improvement," which the court did not want to "prematurely extinguish" by detaining him.  A significant factor for the court was that although Reboux's crime was definitionally violent, his "conduct was not violent.  He did not have sexual contact with any child, not did he attempt to communicate with any child for illicit purposes.  Obtaining child pornography for private sexual gratification, although wrongful, is not in and of itself an act of violence under any ordinary definition of that term." 

These are two useful, thoughtful decisions to use in opposing detention in cases involving possesion of child pornography.