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United States v. Turman

United States District Court, D. Montana, Missoula Division

September 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALLEN DUANE TURMAN, Defendant.

          ORDER

          DANA L. CHRISTENSEN, CHIEF DISTRICT JUDGE.

         On 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.

         Discussion

         This 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.").

         The 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)).

         Section 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 defendant's release.

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. 1991)).

         Here, 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.

         A. Nature and Circumstances of Offense Charged

         Turman 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.

         In 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).

         Consequently, this factor weighs against Turman's release.

         B. Weight ...


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