United States v. Kroeker

UNITED STATES OF AMERICA, Plaintiff, v. DANIEL KROEKER, Defendant.

No. 22-10014-JWB

United States District Court, D. Kansas

May 4, 2022

MEMORANDUM AND ORDER

JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

This case comes before the court on the government's appeal of the magistrate judge's order of release, and its motion for detention. (Doc. 12.) The court held a hearing on May 3 2022 and took the matter under advisement. For the reasons stated herein, the government's motion for detention (Doc. 12) is GRANTED and the magistrate judge's order of release (Doc. 10) is REVOKED.

I. Factual and Procedural History

On March 22, 2022, a grand jury returned a two-count indictment against Defendant. Count one essentially charged that on July 14, 2019, Defendant knowingly received child pornography by means of interstate commerce, in violation of 18 U.S.C § 2252A(a)(2). Count two charged that on December 9, 2020, Defendant knowingly possessed material containing an image of child pornography that had been transported in interstate commerce and that was produced with materials in interstate commerce, and which involved a prepubescent minor who has not attained twelve years of age, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). (Doc. 1.)

The government proffered facts relating to the alleged offenses including the following. In January of 2020, North Dakota law enforcement officers searched the residence of one Kyle Enzminger based on a report from Tumblr of uploaded child sexual abuse material. A search of Enzminger's Tumblr account showed he had sent an image depicting sexual exploitation of a 6-year-old child to various users, including the user “to beautiful women, ” who received the depiction on July 14, 2019, at a particular Internet Protocol (“IP”) address. A subsequent search of the latter account showed it was associated with Defendant's name and that the IP address had been accessed from Defendant's residence in Dighton, Kansas. Chat records from the “to beautiful women” account showed communications with individuals who self-identified as minors and to whom child pornography images were sent. The chats included messages from the “to beautiful women” user admitting that he had been suspended twice previously for sharing child pornography and encouraging others to move to a different media platform to exchange such images.

Defendant was arrested by Kansas law enforcement agents on December 9, 2020. Defendant admitted to having searched for child pornography and having used Tumblr to chat with minors such that his account was suspended. A search of Defendant's devices showed they contained child pornography. Defendant was charged in state court and was released on bond with conditions, including GPS monitoring and weekly courthouse visits. One of the state charges involving solicitation of a minor was dismissed by the state court because evidence indicated Defendant's communication was with the parent of the minor rather than with the minor. At some point, as additional images of child pornography were found on the devices previously seized, the matter was referred to the United States Attorney, and the instant indictment ensued.

The government's proffer about Defendant's communication with the parent of a minor, alluded to above, indicates there is evidence that in July 2019 Defendant engaged in a graphic discussion with the parent about sexual abuse of the minor (and others) by the parent, and that Defendant indicated an interest in and essentially encouraged the parent's sexual abuse of the child. There is evidence that Defendant requested and received an image depicting the sexual abuse of the minor.

The government moved for detention pending trial, arguing Defendant was both a danger to the community and a flight risk. The magistrate judge ordered that Defendant be released pending trial under various conditions, including a curfew restricting him to his residency from 7 p.m. to 7 a.m., location monitoring, and having no unsupervised contact with minors. The government now seeks revocation of the order of release and an order that Defendant be detained pending trial.

II. Legal Standard

Pursuant to 18 U.S.C. § 3145(a)(1), the government may seek review of a magistrate judge's order of release. The district court's review of a magistrate judge's order of release is de novo. United States v. Cisneros, 328 F.3d 610, 616 n. 1 (10th Cir. 2003). A de novo evidentiary hearing, however, is not required. The district court may either “start from scratch and take relevant evidence or incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted.” United States v. Collier, No. 12-20021-09, 2012 WL 4463435, at *1 (D. Kan. Sept. 27, 2012) (citing United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991)). The Federal Rules of Evidence do not apply to detention hearings. See 18 U.S.C. § 3142(f). The court may allow the parties to present information by proffer or it may insist on direct testimony. See id.

Under the Bail Reform Act of 1984, the court must order a defendant's pretrial release, with or without conditions, unless it “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.” 18 U.S.C. § 3142(e). In making this determination, the court must take into account the available information concerning

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence...or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;

(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, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g).

The Bail Reform Act provides a rebuttable presumption of risk of flight and danger to the community when a defendant is charged with an offense involving a minor victim under § 2252A(a)(2), as in this case here. See 18 U.S.C. § 3142(e)(3)(E). “A grand jury indictment provides the probable cause required by the statute to trigger the presumption.” United States v. Walters, 89 F.Supp.2d 1217, 1220 (D. Kan. 2000) (citing United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990)). The grand jury indictment in this case charges Defendant with offenses involving a minor victim, including receipt of child pornography, and thus raises the rebuttable presumptions of risk of flight and danger to the community. Id.

The burden of production on Defendant to overcome the presumption is not a heavy one, but Defendant must produce some evidence. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991). Even if Defendant overcomes the presumption, the presumption remains a factor in the court's detention decision. Id. The burden of proof remains with the government to show that no condition or combination of conditions would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community. United States v. Lutz, 207 F.Supp.2d 1247, 1251 (D. Kan. 2002) (burden of persuasion regarding risk of flight and danger to community always remains with government). The government must prove dangerousness to any other person or the community by clear and convincing evidence. Id. at 1252.

III. Analysis

A. Nature and Circumstances of the Offense

The offense charged in Count One involves a minor victim and triggers the statutory presumption of detention. 18 U.S.C. § 3142(e)(3)(E). Both Count One and Count Two are considered “crimes of violence” in the context of detention hearings. 18 U.S.C. § 3156(a)(4). Such offenses are particularly serious given that they involve victimization and sexual abuse of young children who are incapable of knowingly consenting to sexual conduct.

The government's proffer indicates there is evidence that Defendant's conduct went beyond simply possessing images of child pornography and involved direct communication with the parent of a young child about sexual abuse of that child. The proffer indicates Defendant's communication encouraged the parent to engage in sexual abuse of the child and to share images of that abuse, and that the parent in fact shared an image of the minor with Defendant. Such conduct indicates that Defendant's release would pose a high degree of danger to others in the community, particularly to minors who are unable to protect themselves. This factor distinguishes Defendant's circumstance from cases involving only possession of images downloaded from the internet and weighs strongly in favor of detention based on the concern that Defendant's release would pose a danger to the community.

A second factor weighing in favor of detention in this case is the period of time over which Defendant was involved in the alleged offenses. The government's proffer and the materials submitted indicate the offense conduct charged in Count One occurred in July 2019. The offense conduct charged in Count Two allegedly occurred in December 2020, over a year-and-a-half after Count One. That significant period...