United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, CHIEF DISTRICT JUDGE.
September 21, 2018, United States Magistrate Judge Jeremiah
C. Lynch held a hearing to determine whether to release
Defendant Allen Duane Turman pending trial in this matter.
Judge Lynch ultimately decided to release Turman to the care
of his parents while imposing conditions upon his release.
After the conclusion of the hearing, the United States moved
for both a Stay of Release Order (Doc. 9) and Revocation of
Release Order (Doc. 11). On September 25, 2018, this Court
denied the Government's requested stay and implemented an
expedited briefing schedule on this issue. Turman has now
been given an opportunity to express his objection to the
requested revocation of his pre-trial release. For the
following reasons, the United States' Motion will be
granted and Turman's release revoked.
Court's review of Judge Lynch's release order is
authorized by 18 U.S.C. § 3145. Pursuant to §
3145(a), the United States' Motion for revocation of
Judge Lynch's release order is to be determined promptly.
The Court must conduct a de novo review of Judge
Lynch's release order with "the ultimate
determination of the propriety of detention ... to be decided
without deference to the magistrate's ultimate
conclusion." United States v. Koenig, 912 F.2d
1190, 1193 (9th Cir 1990). Absent any indication by either
party that there is additional evidence pertaining to this
issue that was not before Judge Lynch, this Court is
satisfied that an evidentiary hearing is unnecessary.
Id. ("Even under the proper 'de novo'
requirement, the district court, while empowered to do so, is
not required to hold an evidentiary hearing when no evidence
is offered that was not before the magistrate.").
release of a defendant pending trial is governed by the Bail
Reform Act of 1984 at 18 U.S.C. § 3142. "The Act
mandates the release of a person pending trial unless the
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.'" United States v. Hir, 517 F.3d
1081, 1086 (9th Cir. 2008) (quoting 18 U.S.C. §
3142(e)). Where there is probable cause to believe the
defendant committed an offense involving a minor victim,
there arises a rebuttable presumption that "no
conditions will reasonably assure the appearance of the
person as required and the safety of the community."
§ 3142(e)(3). Here, the rebuttable presumption applies
because Turman is charged with Sexual Exploitation of a Child
in violation of 18 U.S.C. § 2251(a). Consequently,
Turman must "proffer evidence to rebut the presumption
of dangerousness." Hir, 517 F.3d at 1086.
However, rebuttal does not erase the presumption but,
instead, the "presumption 'remains in the case as an
evidentiary finding militating against release, to be weighed
along with other evidence relevant to factors listed in
§ 3142(g).'" Id. (quoting United
States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986)).
3142(g) obligates the Court to consider four factors when
determining whether there are conditions of release that will
reasonably assure the appearance of the person as required
and the safety of the public:
(1) the nature and circumstances of the offense charged,
including whether the offense charged, including whether the
offense is a federal crime of terrorism; (2) the weight of
the evidence against the person; (3) the history and
characteristics of the person, including the person's
character, physical and mental condition, family and
community ties, employment, financial resources, past
criminal conduct, and history relating to drug or alcohol
abuse; and (4) the nature and seriousness of the danger to
any person or the community that would be posed by the
Id. Despite the statutory presumption, the
Government retains its burden of proving dangerous by
"clear and convincing evidence." §
3142(f)(2)(B); Hir, 517 F.3d at 1086 (citing
United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.
Tuonan's father testified that Turman could live with his
parents pending trial and that they would report any
violation of his conditions. Judge Lynch found, and this
Court agrees, that this evidence was sufficient to rebut the
presumption that Turman presents a danger and a risk of
flight. Accordingly, Turman's presumed dangerousness and
risk of flight become a factor militating against his release
in the ensuing analysis of the remaining factors contained in
§ 3142(g). Hir, 517 F.3d at 1086. With this
framework, the Court proceeds to analysis of those factors.
Nature and Circumstances of Offense Charged
is charged with three counts of Sexual Exploitation of a
Child in violation of 18 U.S.C. § 2251(a) as well as two
counts of Possession of Child Pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). Turman's surreptitious
filming of his two daughters, and his younger daughter in
particular, while they changed, bathed, and used the restroom
form the basis of the three charges for Sexual Exploitation
of a Child. Particularly important here is the fact that
Turman is alleged to have perpetrated these crimes against
his own flesh and blood. The Court considers this fact to
clearly demonstrate that Turman presents a danger to minor
children because it shows that his perverse sexual appetite
is whetted to the point where he is willing to perpetrate his
crimes upon his own children.
addition, Turman is also alleged to have a cache of known
child pornography that is sadistic or masochistic in nature,
depicting the vaginal, anal, and oral penetration of
prepubescent boys and girls, children engaged in bestiality,
and the anal penetration of a baby. Turman's offenses are
undeniably serious in nature and involve circumstances
endangering the community. See, e.g., Pub. L. No.
104-208, § 121, 110 Stat. 30009 (codified at 18 U.S.C.
§ 2251) ("The existence of and traffic in child
pornographic images creates the potential for many types of
harm in the community and presents a clear and present danger
to all children."); see also United States v.
Morace, 594 F.3d 340, 350 (4th Cir. 2010) (emphasizing
that child pornography crimes are considered serious and
deserve serious sanctions).
this factor weighs against Turman's release.