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United States v. Adams

United States District Court, D. Oregon

July 10, 2019

UNITED STATES OF AMERICA
v.
GREGORY ADAMS, Defendant.

          ORDER GRANTING DEFENDANT RELEASE ON CONDITIONS

          MUSTAFA T. KASUBHAI United States Magistrate Judge.

         Gregory Adams is charged by complaint with travel with intent to engage in illicit sexual activity and attempted receipt of child pornography. These charges carry with them a presumption of detention. Mr. Adams seeks release claiming that his physical condition is sufficient to rebut the presumption of detention.

         Brief Discussion of Relevant Facts

         The Criminal Complaint (ECF No. 1) and attending affidavit provide a detailed description of the conduct underlying the charged crimes. At the detention hearing the government proffered evidence including the defendant's prior criminal history. The history involved a violent person crime for which the defendant served a mandatory minimum sentence with the Oregon Department of Corrections for 180 months. The government also disclosed there was no prior criminal history involving any sex-related crimes or crimes involving minors. The defendant did, however, travel to the Philippines to engage in sexual contact with a minor child who was 16 years old. At the detention hearing, defendant's attorney did not dispute that defendant had sexual contact with a 16-year old child, but disputed that the government could not carry its burden of proof as it relates to the other elements of the charged crimes.

         Additionally, the defendant proffered medical evidence outlining the extent of the defendant's medical conditions and extensive treatment associated with diabetes, heart conditions and several open sores on defendant's legs. Both parties examined the medical director at Sheridan, Dr. Grasley.

         The defendant's sister, Julie Martinez-Mendez, testified at the hearing. She explained that the defendant and she lived in a 35-foot RV, she provided treatment support for the defendant, dressed his wounds, transported defendant to his medical appointments and was capable and willing to supervise the defendant 24-hours a day. This witness testified she was also willing to ensure that defendant complied with all conditions of release, and that she would be willing to discontinue internet service in the RV to restrict the defendant's internet and communications access.

         Finally, after the hearing the Court received several email communications from both the government and the defense in which the defense outlines several ongoing concerns with the purported delay in defendant's treatment for his medical conditions. As of this date of this Order a cardiology exam has yet to be scheduled although Dr. Grasley testified that he believed it likely had been scheduled prior to the June 26 detention hearing. The email communications outline incidents in which the defendant has either become dizzy or lost consciousness and has been injured as a result. Further, despite wound care recommendations for compression socks, those therapeutic measures have not been provided to date.

         The Presumption of Detention

          Under the Bail Reform Act, 18 U.S.C. § 3142, et seq., which governs the detention of a defendant pending trial, a court shall order a defendant detained if, after a hearing, it finds “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). The United States bears the burden of establishing danger to the community by clear and convincing evidence; risk of flight need only be proved by a preponderance of the evidence. United States v. Aitken, 898 F.2d 104, 107 (9th Cir. 1990); United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986).

         Where, as here, there is probable cause to believe that the defendant committed an offense under, inter alia, 18 U.S.C. §§ 2423 or 2252(a), involving a minor victim, there exists a rebuttable presumption that “no condition or combination of conditions of release will reasonably assure the appearance of the person as required and the safety of the community.” 18 U.S.C.A. § 3142(e)(3)(E).

         Thus, in these cases, the burden of proof shifts to the defendant to rebut the presumption of dangerousness. United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986); cf. United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (noting that in terrorism case involving presumption, “the presumption shifts a burden of production to the defendant, [but] the burden of persuasion remains with the government”). Even if the presumption is rebutted, however, the presumption does not disappear, and it continues to carry evidentiary weight. See Hir, 517 F.3d at 1086 (“The presumption is not erased when a defendant proffers evidence to rebut it; rather 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).” (citing United States v. Dominguez, 783 F.2d 702, 707 (7th Cir.1986)).

         The Ninth Circuit has held that a court should consider the following facts if a defendant proffers evidence to rebut the presumption of dangerousness:

(1) the nature and circumstances of the offense charged, []; (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 ...

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