United States v. Renander

431 F.Supp.3d 1240

UNITED STATES of America, Plaintiff,

v. Jason RENANDER , Defendant.

Criminal Case No. 19-cr-491-WJM

United States District Court, D. Colorado.

Signed January 7, 2020

Alecia Lynne Riewerts, U.S. Attorney's Office, Denver, CO, for Plaintiff.

Michael James Sheehan, Michael J. Sheehan, Attorney at Law, Centennial, CO, for Defendant.

ORDER AFFIRMING MAGISTRATE JUDGE'S DETENTION ORDER

William J. Martinez, United States District Judge

The Government charges Defendant Jason Renander ("Renander") with three counts of producing child pornography in violation of 18 U.S.C. § 2251(a) & (e), and one count of transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1) & (b)(1). (See ECF No. 1.)

On December 4, 2019, U.S. Magistrate Judge Scott T. Varholak ordered that Renander be detained pending trial. (ECF No. 13.) That prompted the motion currently before the Court, namely, Renander's Motion for Revocation of Detention Order ("Motion"). (ECF No. 20.) For the reasons explained below, the Court denies the Motion.

I. DETENTION PRESUMPTIONS & STANDARD OF REVIEW

A. Initial Standard

The Court "shall order the detention of the [defendant] before trial" if the Court finds, after a hearing, "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)(1). "Subject to rebuttal by the [defendant], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed * * * an offense involving a minor victim under section[s] ... 2251 [or] 2252A(a)(1) ... of [title 18 of the U.S. Code]." Id. § 3142(e)(3)(E). This presumption applies to Renander given the charges against him.

"Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced." United States v. Stricklin , 932 F.2d 1353, 1354–55 (10th Cir. 1991)

"The facts the judicial officer 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)(2). As for risk of flight, the burden is preponderance of the evidence. United States v. Cisneros , 328 F.3d 610, 616 (10th Cir. 2003). The Government bears the burden in both cases. Id.

The factors the Court "shall" consider when deciding whether to grant pretrial release are:

(1) the nature and circumstances of the offense charged, including whether the offense ... involves a minor victim ...;

(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). Also, the presumption of detention, even if countered by the defendant with adequate evidence, "remains a factor for consideration by the district court in determining whether to release or detain." Stricklin , 932 F.2d at 1355.

B. Review

"If a person is ordered detained by a magistrate judge, ... the person may file, with the [district court], a motion for revocation or amendment of the order." 18 U.S.C. § 3145(b). The district judge then reviews the magistrate judge's decision de novo . Cisneros , 328 F.3d at 616 n.1.

De novo review, however, does not necessarily mean holding an evidentiary hearing. Although a district court may start from scratch and take evidence, it may also review the evidence that was before the magistrate judge and make its own independent determination as to whether the magistrate judge's findings and detention order are correct. This is a matter of discretion for the district court.

United States v. Romero , 2010 WL 11523871, at *2 (D. Colo. May 17, 2010) (internal quotation marks and citations omitted).

II. BACKGROUND

Having reviewed the indictment (ECF No. 1), the pretrial services report (ECF No. 19), the detention hearing transcripts (ECF Nos. 22 & 23), the Motion (ECF No. 20), and the Government's response (ECF No. 26), the Court finds the following to be an accurate statement of facts as they relate to the question of whether Renander should be detained pending trial.

In early 2013 or thereabouts, Renander hid his cell phone in the bathroom of his home in Parker, Colorado, and thereby captured video and/or still images of a preteen or young teenage girl taking a shower. The Government designates the victim "Minor 2" and the video/images of her form the basis of Count 2 of the indictment.

In approximately the summer of 2014, Renander again hid his cell phone in the bathroom of his home and captured video and/or still images of a different preteen or young teenage girl taking a shower. The Government designates the victim "Minor #3" and the videos/images of her form the basis of Count 3 of the indictment.

In December 2014, Renander hid his cell phone in a bathroom of a home or apartment where Renander was staying in Steamboat Springs. Specifically, the phone was hidden inside a cologne box with a hole cut in it for the phone's camera. A preteen or young teenage girl known as "Minor 4" noticed the cologne box just after taking a shower. She opened it, discovered the phone, and saw that the phone had been recording video of her in the shower. She reported this to Renander's wife, who examined the video and then confronted Renander. Renander somehow convinced his wife that the incident had been an innocent mistake.¹

Shortly afterward, Renander purchased a special video camera concealed in a towel hook. He installed it in his home bathroom and used it to capture at least one video of a preteen or young teenage girl taking a shower. The Government designates this girl as "Minor 1" and this video forms the basis of Count 1 of the indictment.

In mid-2016, Renander's wife discovered pornographic pictures of Minor 1 on Renander's laptop. From the angle of the pictures, she located camera concealed in the towel hook. She seized the device and again confronted Renander. It is not clear what Renander said in response, but his wife took no action other than to destroy the camera.

In mid-August 2018, federal agents discovered an online repository of child pornography that included videos of the girl known as Minor #3. One of those videos showed Minor #3 before disrobing to take a shower, and she was wearing a sweatshirt with the name of a particular Colorado middle school. This is the clue that set the agents on the trail that eventually led to Renander.

However, in late August 2018—while the investigation was just beginning, and before Renander knew anything about it—Renander communicated via Instagram Messenger with a still-unknown person ("Recipient") who had established an Instagram page devoted mostly to pornographic photos of Minor 1. Recipient asked Renander if he had any pornographic videos of Minor 1. Renander had videos on his phone, and he transmitted three of them to Recipient. This transmission forms the basis of Count 4.

On November 2, 2018, federal agents executed a search warrant on Renander's home in Parker and seized all digital devices. Renander gave a noncustodial interview to the agents and essentially admitted his crimes, but the agents did not then arrest him.

That night, Renander went to the Douglas County Library and used a library computer to tell Recipient that he had been "busted," and then to delete his (Renander's) Instagram account. The following day, he deleted a Yahoo account that also had some relationship to his child pornography production and/or trafficking.

As far as the record reveals, none of the minor victims were related to Renander, but Renander and his wife have a daughter that was approximately five years old at the time the search warrant was executed. Soon after the warrant was executed, a dependency and neglect ("D&N") case was filed in Douglas County against Renander. Renander was ordered not to live in the same home as his daughter. He therefore moved in with his parents in Sedalia, Colorado. Renander was also ordered to begin sex offender counseling. He did so and regularly attended counseling sessions with Dr. Rick May, a psychologist who has been certified by the Colorado State Sex Offender Management Board. Eventually the D&N judge permitted Renander to move back to his home to live with his wife and daughter, although he could not have unsupervised contact with his daughter.

Also soon after the search warrant was executed, Renander retained his current defense attorney, who began communicating regularly with the U.S. Attorney's Office. Renander's attorney convinced the case agent to permit Renander to surrender voluntarily once any arrest warrant was signed. Due to evidentiary complexities and the need for additional investigation (apparently there was some question whether the Government could prove that the videos had been produced in the District of Colorado), the Government did not indict Renander until November 21, 2019. An arrest warrant issued, and, per the agreement between ...