UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 11-310 (JDB) FRANCIS BEAUCHAMP-PEREZ,

Defendant.

MEMORANDUM OPINION AND ORDER

The defendant was arrested on March 1, 2011 and has been in custody since that date.

He has now been indicted on one count of travel with intent to engage in illicit sexual conduct in

violation of 18 U.S.C § 2423(b). The government moved to detain the defendant without bail

pending trial. A magistrate judge denied the motion, but ordered that the defendant be held

without bail pending an order containing release conditions. On October 26, 2011, the

magistrate judge ordered that the defendant be released on 24-hour home detention at his

grandmother's home in Puerto Rico. The government then promptly [Docket Entry 28] moved to

revoke the magistrate judge's order denying pre-trial detention without bail and moved for a stay

of the magistrate judge's release order pending resolution of the revocation motion.

On October 27, 2011, this Court held a hearing regarding the motion and, following the

hearing and the defendant's request for a continuance, granted the government's motion for a stay

pending resolution of the revocation motion [Docket Entry 34]. On November 3, 2011, the

Court held an additional hearing on the revocation motion. For the reasons expressed below, the

1 Court will now grant the government's motion to revoke the magistrate judge's order denying

pre-trial detention without bail. The defendant shall be held without bail.

I. Legal Standard

A judicial officer must order the detention of a person charged with an offense if, after a

detention hearing, "the judicial officer 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."

(e)(1). "Subject to rebuttal by the person, it shall be

presumed that no condition or combination of conditions will reasonably assure the appearance

of the person 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 [

]."

§ 3142(e)(3).

In determining whether there are conditions of release that will reasonably assure the

appearance of the person as required and the safety of any other person and the community, the

judicial officer must consider four factors: (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 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 (4) the

nature and seriousness of the danger to any person or the community that would be posed by the

person's release. Id. § 3142(g).

2 "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 must be

supported by clear and convincing evidence." Id. § 3142(f). On the other hand, the level of proof

required to establish risk of flight is "the preponderance of the evidence." United States v.

Vortis,

(D.C. Cir. 1986) (per curiam); accord United States v. Saani,

(D.C. Cir. 2008) (unpublished decision). Both the government and the defendant may

offer evidence or proceed by proffer. United States v. Smith,

(D.C.

Cir. 1996).

Finally, "[i]f a person is ordered released by a magistrate judge, . . . the attorney for the

Government may file, with the court having original jurisdiction over the offense, a motion for

revocation of the order or amendment of the conditions of release."

§ 3145(a). The Court's

review of the magistrate judge's determination is generally considered de novo. See United

States v. Hudspeth,

(D.D.C. 2001) (citing cases); see also Def.'s

Supplemental Mem. [Docket Entry 39], at 1.

II. Probable Cause and Presumption

In this case, the government has provided evidence of an Internet chat, telephonic

communication, and text messages between the defendant and an undercover detective of the

Metropolitan Police Department. See Mot. for Emergency Stay and for Review and Appeal

[Docket Entry 28], at 2-3. The defendant has not contested that these communications included

an agreement to meet in person, as well as discussion that the defendant would have sex with a

twelve year-old boy. See Def.'s Mem. [Docket Entry 37], at 2-3. Nor has the defendant

contested a communication in which the undercover detective discussed bringing the boy to a

3 meeting with the defendant and asked the defendant "if you were cool with him fucking you or

would you rather fuck him," to which the defendant responded, "I'd probably be more

comfortable fucking him." See id. at 3. Finally, the defendant has not contested that he did

travel from Virginia and arrive for the meeting in the District of Columbia. Id.

The defendant has been charged with an offense involving a minor victim. On the basis

of the uncontested evidence, the Court finds that there is probable cause to believe that the

defendant committed this offense. Accordingly, there is a rebuttable presumption that no

conditions will reasonably assure the appearance of the defendant as required and the safety of

the community.

III. Factor Analysis

With respect to the four factors for determining whether there are conditions of release

that will reasonably assure the appearance of the defendant and the safety of the community, the

magistrate judge stated that she "very carefully considered the full extent of the evidence offered

and proferred." Tr. of Arraignment and Detention Hr'g Before the Hon. Deborah A. Robinson,

Part 2 ("Tr. Part 2"), at 40. The magistrate judge indicated that she focused primarily on "the

nature and circumstances of the offense charged and the weight of the evidence." Id. The

magistrate judge stated that the defendant's clear intent to commit the crime was undermined by

the fact that the website on which the defendant encountered the undercover detective was

frequented by adult men and that users know that they can be kicked off the site for talking about

having sexual encounters with minors. Id. at 41; see also Tr. of Arraignment and Detention Hr'g

Before the Hon. Deborah A. Robinson, Part 1 ("Tr. Part 1"), at 23-24. The magistrate judge

noted that nothing on the defendant's online profile suggested that the defendant was interested

4 in sex with children and that the defendant did not make inquiries regarding a child. Tr. Part 2,

at 41-42; see also Tr. Part 1, at 31-39, 55-56. The magistrate judge also stated that she relied on

testimony from the undercover detective that it is "possible" that the defendant could have been

waiting until the child left before the defendant arrived at the scene and testimony that the

defendant's intent was "ambiguous." Tr. Part 2, at 42; see also Tr. Part 1 at 47.

With respect to the nature and circumstances of the offense, the charged offense is

serious and involved traveling with intent to have sex with a twelve year-old minor victim. The

Court finds that this factor supports detaining the defendant; indeed, it is the basis for the

presumption in favor of detention.

Regarding the weight of the evidence, in addition to the uncontested evidence, the

government has provided evidence of conversations between the defendant and the undercover

detective in which the defendant agrees to have sex with the minor victim. First, the government

provided the transcript of an Internet chat between the defendant and the undercover detective on

the website BarebackRT.com. Gov. Ex. 8. The government and the defendant agree that the

website is primarily used for gay men to arrange adult sexual encounters, but the government

indicates that law enforcement has also identified the website as one used by pedophiles. The

defendant initiated contact on this website with the detective, who was operating under the name

"DCped," and the defendant indicated he was "up for" "get[ting] together" with the detective and

a "kinna young" "boi." Id.

Second, the government provided records of text messages between the defendant and the

detective, as well transcripts and recordings of telephone conversations between the defendant

and the detective. Gov. Ex. 2-4, 9-10. In the first text message exchange, the detective states

5 that the child is twelve years-old and asks the defendant if that is too young, to which the

defendant responds that he is eager to meet. Gov. Ex.1. In a subsequent telephone conversation,

the defendant confirms that he is comfortable with the child's age and avoids the detective's offer

to "hook-up alone." Gov. Ex. 2. In addition to the uncontested statement quoted above in which

the defendant states his preference for having sex with the child, rather than having the child

have sex with him, the defendant also states that he'd prefer to have sex with the child rather than

with the detective. Id. In a subsequent text message exchange, the planned arrival of the child

at 5pm and the defendant at 7pm is confirmed, and the defendant suggests meeting with the

detective "alone first." Gov. Ex. 1. In the next telephone exchange, the detective stated that the

child will need to leave at 9pm, offered that he and the defendant could "hook up later" instead,

discussed the details of the planned sexual encounter involving the child and the defendant, and

stated that the child is real and not "fantasy." Gov. Ex. 3. The defendant responded that he did

not realize that the child needed to leave that early, that he was comfortable with having sex with

the child, and that he understood the situation is not "fantasy"; he did not take the detective up on

his offer to "hook up later" instead. Id. The defendant then sent a text asking if the detective still

wanted to meet, after which the two had a telephone conversation in which the detective

confirmed that the child was on his way to the meeting. Gov. Ex. 1; Gov. Ex. 4. The defendant

arrived at the meeting in the District at approximately 7:55pm and was arrested upon meeting the

detective.

The government also provided notes from an interrogation of the defendant after his

arrest. According to these notes, the defendant "did not dispute that he engaged in conversations

about having sex with a minor, but stated that he was just 'going along' with the story" and that

"he only had intentions of having sex with the Undercover Officer." Gov. Ex. 5. The defendant

6 also stated that there was child pornography (both images and videos) on his computer and that,

although looking at child pornography "has been a fantasy of his since he was in his early 20s,"

he "does not routinely look at the child pornography." Id.

Finally, the government also offered testimony of an expert in computer analysis and

child pornography regarding his examination of the defendant's personal computer. The expert

testified that the defendant's computer contained several images and eight videos of child

pornography. The expert stated that the defendant's email account also contained evidence of

three instances of distribution of child pornography. The expert testified to the details of the

images the defendant allegedly distributed and the government entered the images into the

record. The government also entered descriptions of the video child pornography found on the

defendant's computer into the record. Gov. Ex. 14. On cross-examination, the expert stated that

the defendant's computer contained approximately 100 times as many pornographic images of

adults as of children, and likewise approximately 100 times as many adult pornographic videos

as videos of children.

The government argues that the evidence shows defendant's clear intent to engage in

sexual intercourse with a 12 year-old child after traveling from Virginia to the District. The

defendant responds by arguing that the defendant's intent to have sex with the child is

inconclusive based on the evidence. The defendant contends that the initial Internet chat

between the defendant and the detective was ambiguous, and that the defendant's actions were

consistent with fantasy, not intent to actually have sex with a minor. The defendant further

argues that the defendant is not a pedophile, citing the fact that there were many fewer instances

of child pornography than adult pornography on his computer.

7 Considering the evidence provided and the parties' arguments, the Court finds that the

weight of the evidence against the defendant is fairly strong. The defendant on several occasions

verbally confirmed his intent to have sex with a twelve year-old boy. The defendant agreed to

specific details of the planned sexual encounter and explicitly confirmed that he was not

participating in fantasy. The detective also suggested to the defendant on several occasions that

the defendant might have sex with the adult detective instead of with the child, and the defendant

consistently expressed an interest in having sex with the child. The defendant arrived at the scene

more than an hour before the time he was told the child would leave. Additionally, the presence

of a substantial amount of child pornography on the defendant's computer suggests that he had a

sexual interest in children. See United States v. Lewis,

(D.C. Cir. 2009).

On the other hand, the defendant did not initiate the discussion with the detective regarding

having sex with a child and on one occasion suggesting meeting with the detective before

meeting the child. On the whole, however, this factor favors detaining the defendant.

With respect to the defendant's history and characteristics and the nature and seriousness

of the danger posed by the defendant's release, the magistrate judge's order provides for the

defendant to be released under the supervision of the United States Probation Office in San Juan,

Puerto Rico. The defendant was born and raised in Puerto Rico, but has been living in

Minnesota since 2009. The defendant notes that he has no prior criminal record, has never failed

to appear in court, and had been professionally employed prior to his arrest. The defendant also

notes that he would be residing while released in his grandmother's home without minors and

without access to the Internet. This location is approximately three hours from San Juan.

According to the government, the probation office maintains that it could supervise the defendant

with electronic monitoring and would "try" to respond to any incidents within twenty-four hours.

8 The defendant also submitted several letters of character reference. Furthermore, the defendant's

father testified that he would accompany the defendant to and from Puerto Rico and that the

defendant has never previously had legal problems. The defendant's father also testified that at

least one child resides near the home where the defendant would reside and that a school is

approximately one kilometer from the home.

The defendant's lack of criminal record, positive character references, and strong family

ties support his assertion that he presents no danger to the community. The Court therefore finds

that the defendant's history and characteristics favor his release. On the other hand, the

circumstances proposed for his release suggest some possible danger to the community. The

defendant would be residing near a school, several hours from the supervising office, which may

not be able to respond to incidents promptly. Moreover, enforcement of the ban on computer

and Internet access would be difficult.

In consideration of all of the factors, the very serious nature of the allegations, the weight

of the evidence against the defendant, and the possible danger to the community collectively

outweigh the defendant's positive history and characteristics. Hence, the Court finds that the

defendant has not rebutted the presumption that no conditions will reasonably assure the

appearance of the defendant as required and the safety of the community.

IV. Conclusion

Accordingly, the government's motion to revoke the magistrate judge's order is

GRANTED. The defendant shall be held without bail pending the resolution of the charges

against him.

SO ORDERED.

9 /s/

JOHN D. BATES United States District Judge

Dated: November 9, 2011

10