UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

Case No. 18-mj-102 (GMH)

DANIEL A. NICKELSON, JR., Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM OPINION

The defendant, Daniel A. Nickelson, Jr., has been charged by criminal complaint, with

three charges of distributing, conspiring to distribute and advertising to offer to distribute child

pornography, in violation of

(a)(2), 2252(b)(1) and 2251(d). Crim. Compl. at

1, ECF No. 1. Following the defendant’s arrest, on August 28, 2018, in his home state of

Arizona, the government’s motion for pretrial detention was denied by a magistrate judge in the

District of Arizona at a detention hearing held on September 5, 2018, and the magistrate judge

instead entered an order for pretrial release of the defendant to home confinement without access

to the internet. The magistrate judge stayed the order pending the government’s appeal, see Min.

Entry (dated September 5, 2018), District of Arizona, 4:18-mj-05938, and the defendant was

ordered transported to this District, see Order Granting Gov’t’s Mot. Transport of Def., ECF No.

7. Thereafter, based upon the evidence proffered by the parties at a detention hearing, on

October 12, 2018, before this Court, the government’s motion to detain the defendant was

granted. See Min. Entry (Oct. 12, 2018). This Memorandum Opinion sets out the findings and

1 reasons for detention. See

(i)(1) (requiring that a detention order “include

written findings of fact and a written statement of the reasons for the detention”); see also United

States v. Nwokoro,

(D.C. Cir. 2011) (noting that the Bail Reform Act requires

pretrial detention order be supported by “a clear and legally sufficient basis for the court’s

determination” in written findings of fact and a written statement of the reasons for the detention

or in “the transcription of a detention hearing” (quoting United States v. Peralta,

(D.C. Cir. 1988))) (per curiam).

I. BACKGROUND AND FINDINGS

At the detention hearing, the government relied, as support for seeking the defendant’s

pretrial detention, largely on the factual allegations set out in the criminal complaint, as well as

statements made by the defendant at the time of his arrest and the preliminary results of a

forensic examination of the defendant’s cell phone recovered from his person at the time of his

arrest. In particular, as detailed in the criminal complaint, a D.C. Metropolitan Police

Department detective (“UC”), who was acting undercover as part of the MPD-FBI Child

Exploitation Task Force operating out of a local office in Washington, D.C., observed the

defendant’s activity, between July 6 and July 20, 2018, on a private KIK group called “Pedos

Only,” to which the UC had been invited to participate by another user. Crim. Compl.,

Statement of Facts, at 1, ECF No. 1-1. KIK is a free instant messaging mobile application that

supports the transmission and receipt of multi-media content between individual users and in

group chat rooms.

at 1 n.1. Using the username “dnick1982,” the defendant asked other

users of the “Pedos Only” group to send him child pornography in a private KIK message group,

in order to gain entry to yet another private KIK chatroom, and also posted the query whether

“Any one wanna trade vids.” Id. at 1.

2 In private KIK chats with the UC, the defendant: (1) advised the UC regarding the UC’s

purported minor daughter, “Just have fun with her when she is awake,” and told the UC that the

defendant had “a few” videos, id. at 2; (2) sent the UC a link to a “safe” Dropbox folder with

twelve child pornography videos, including of toddlers, showing the children engaged in sexual

acts with adults, id. at 3; (3) sent the UC directly a video of a female of an unknown age

masturbating, id.; (4) sent the UC directly a video of a female inserting two fingers in her vagina,

id.; and (5) on July 13, 2018, invited the UC to a second private KIK group, consisting of at least

ten users, who traded child pornography images and videos, id. at 4.

The UC observed the defendant’s activity in the second private KIK group, including: (1)

on July 16, 2018, the defendant posted, a child pornography video and expressed his desire to

have sexual intercourse with an underage girl, id.; (2) on July 16, 2018, the defendant was

promoted to an “administrator” and then, the next day, to “owner” positions for the group, with

the power to control access to, and content available to, the group, id. at 5; (3) the defendant

urged other users to post more child pornography material, id.; (4) on July 18, 2018, the

defendant uploaded the same Dropbox link previously given to the UC to the group and also

uploaded images and videos of child pornography directly to the group, id.; and (5) on July 18

and 19, 2018, the defendant warned other users to post “good enough vids” or face removal from

the group and then another user posted links to 23 Dropbox and other sites containing over 6,500

child pornography files of children appearing to be of elementary through high school age, id. at

6–7.

At the time of the defendant’s arrest, the defendant was in possession of a cell phone on

which child pornography was stored, including such images of an infant and toddler that the

defendant had viewed the morning of his arrest while at work. The defendant had the usernames

3 of over 550 KIK users saved in his KIK account. In a statement to law enforcement, the

defendant admitted to being a KIK user but attempted to excuse his conduct with the explanation

that his purpose was to obtain evidence to bring to the Federal Bureau of Investigation.

II. LEGAL STANDARD

The Bail Reform Act of 1984,

et seq., provides that “a person awaiting

trial on a federal offense may either be released on personal recognizance or bond, conditionally

released, or detained,” and “establishes procedures for each form of release, as well as for

temporary and pretrial detention.” United States v. Singleton,

(D.C. Cir. 1999)

(citing

(a)). The court is required, under

(f)(1), to hold a

pretrial detention hearing, upon the government’s motion for detention, before releasing any

defendant charged with certain serious crimes, including “a crime of violence,” which is defined

to include “any felony under chapter…110.”

(a)(4)(C). A judicial officer

“shall order” a defendant’s detention before trial,

§ 3142(e)(1), if, after the detention hearing

held under Section 3142(f), and consideration of “the available information concerning”

enumerated factors, id. § 3142(g), “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,” id. § 3142(e)(1). The facts used to support this finding “shall

be supported by clear and convincing evidence.” Id. § 3142(f). Even if the defendant does not

pose a flight risk, danger to the community alone is sufficient reason to order pretrial detention.

United States v. Salerno,

(1987).

When a defendant is charged with enumerated offenses described in Sections 3142(e)(2),

(e)(3) and (f)(1), “[s]ubject 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

4 the safety of the community if the judicial officer finds that there is probable cause to believe

that the person committed” such an offense.

(e)(3). Once a rebuttable

presumption is triggered, the defendant bears the burden of production “to offer some credible

evidence contrary to the statutory presumption,” United States v. Alatishe,

(D.C. Cir. 1985), while the ultimate burden of persuasion remains with the government, see

United States v. Hir,

(9th Cir. 2008); see also United States v. Abad,

(8th Cir. 2003) (“In a presumption case such as this, a defendant bears a

limited burden of production—not a burden of persuasion—to rebut that presumption by coming

forward with evidence he does not pose a danger to the community or a risk of flight.” (quoting

United States v. Mercedes,

(2d Cir. 2001)); United States v. Dominguez,

(7th Cir. 1986) (noting that the burden remains with the government to persuade

the court that the defendant is a danger or poses a risk of non-appearance). The defendant is not

required to rebut the presumption that the criminal activity is dangerous, or even to rebut the

judicial finding as to probable cause, but only to “meet[] a ‘burden of production’ by coming

forward with some evidence that he will not flee or endanger the community if released.”

Dominguez,

.

The judicial officer considering the propriety of pretrial detention must consider four

factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence,…or involves a minor victim. . .; (2) the weight of 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 . . . 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

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

(g). At the detention hearing, both the government and the defendant may offer

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

, 1209–10 (D.C. Cir. 1996).

The standard of review for review of a magistrate judge’s order for release is de novo,

and a district judge conducting that review must “promptly,”

(a), make an

independent determination whether conditions of release exist that will reasonably assure the

defendant’s appearance in court or the safety of any other person or the community, pursuant to

Section 3142(e)(1). See

(a)(2) (authorizing magistrate judges to “issue orders

pursuant to section 3142 of title 18 concerning release or detention of persons pending trial”);

§ 636(b)(4) (directing “[e]ach district court shall establish rules pursuant to which magistrate

judges shall discharge their duties”); D.D.C. CRIM. R. 59.3(a) & (b) (providing that a magistrate

judge’s order issued “in a criminal matter not assigned to a district judge” and “for which review

is requested in accordance with this Rule may be accepted, modified, set aside, or recommitted to

the magistrate judge with instructions, after de novo review by the Chief Judge.”); see also

United States v. Henry,

(D.D.C. 2017) (“The Court reviews de novo

whether there are conditions of release that will reasonably assure the safety of any other person

and the community.”); United States v. Hunt,

, 132–33 (D.D.C. 2017)

(noting that “although the D.C. Circuit has not yet addressed the issue, the many circuits that

have agree that the district judge should review de novo a detention decision rendered by a

Magistrate Judge”) (collecting cases). “The Court is free to use in its analysis any evidence or

reasons relied on by the magistrate judge, but it may also hear additional evidence and rely on its

own reasons.” United States v. Hubbard,

(D.D.C. 2013) (quoting

United States v. Sheffield,

(D.D.C. 2011)).

6 III. DISCUSSION

In this case, the defendant has not been indicted but does not dispute that there is

probable cause to believe that he committed the charged offenses of conspiring to distribute,

distributing and advertising for the distribution of child pornography, in violation of

(a)(2), 2252(b)(1) and 2251(d). These charged offenses trigger the rebuttable

presumption under Section 3142(e)(3)(E), as “offense[s] involving a minor victim under

section…2251…2252(a)(2).” Accordingly, in light of the factual allegations and the defendant’s

concession as to probable cause, the rebuttable presumption under section 3142(e)(3)(E) is

triggered here.

The next task is determining whether the defendant has rebutted the presumption of

pretrial detention by showing any condition or combination of conditions of release that will

reasonably assure the appearance of the defendant as required and the safety of any other person

and the community. In this regard, the defendant urges that he be released to home confinement

with no Internet access. Rough Transcript of Hearing (October 12, 2018) at 19:6–20:4. The

sufficiency of these proposed release conditions is addressed as part of consideration of the four

factors, under

(g). On the current record, these factors militate strongly in favor

of pretrial detention.

1. Nature and Circumstances of the Charged Offense

The first factor, the nature and circumstances of the charged offense, favors detention.

The charged offenses involving the distribution of child pornography, conspiracy to do the same,

and advertising to recruit others to do the same, are extremely serious. Child pornography

depicts pictorial evidence of physical sex abuse against, and exploitation of, children and the

production and distribution of such contraband carries a multitude of harms. Child pornography

7 victims “are harmed initially during the production of images, and the perpetual nature of child

pornography distribution on the Internet causes significant additional harm to victims,” and “live

with persistent concern over who has seen images of their sexual abuse” and how those images

are being used to cause additional harm. U.S. SENT’G COMM’N, FEDERAL CHILD PORNOGRAPHY

OFFENSES (Dec. 2012) at vii (available at

https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-

offense-topics/201212-federal-child-pornography-offenses/Full_Report_to_Congress.pdf). Child

pornography is used to “groom” other underage victims to engage in sexual acts and, when

shared in online child pornography groups that essentially form communities, “validates and

normalizes the sexual abuse of children” and “contribute[s] to the further production of child

pornography and, in the process, to the sexual abuse of children.”

As Congress found in

enacting the Child Pornography Prevention Act of 1996, “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.”

,

(codified

at

). Reflecting the seriousness of these charges, a violation of Section

2252(a)(2) carries a minimum term of imprisonment of five years, see

(b)(1),

and Section 2251(d) carries a minimum term of imprisonment of fifteen years and a maximum

term of imprisonment of 30 years, see

§ 2251(e).

The facts alleged by the government present a disturbing case of distribution of child

pornography in an online “community” in which the defendant invited and then encouraged

other users to participate and distribute child pornography. One individual invited and urged by

the defendant to share child pornography with the KIK private group provided links to over

6,500 child pornography images and videos. To minimize the risks of further harm, the

8 defendant proposed, and the magistrate judge imposed, as release conditions that the defendant

remain confined to his home that he shares with his is ex-wife and, since they plan to re-marry,

fiancé, and not to possess electronic devices. Gov’t’s Mot. Emergency Review Release Order at

2, ECF No. 3; see also Min. Entry (dated September 5, 2018), District of Arizona Docket, 4:18-

mj-05938. These conditions were intended to restrict the defendant’s access to the Internet, to

mitigate the risk of further harm to children through the distribution of child pornography

reflecting the sexual abuse or exploitation of children.

These release conditions are simply insufficient. Monitoring compliance with the release

conditions would be difficult since the defendant resides with another person, who may herself

possess or have access to electronic devices capable of connecting to the Internet and storing

child pornography, and may invite others to the home with such devices. The risk of re-

offending looms large and, in light of the dangerousness to the most vulnerable members in our

society—children—the proposed release conditions fall short of providing reasonable assurances

for the safety the community.

2. The Weight of the Evidence

The weight of the government's evidence against defendant is very strong. The

government supports the child pornography distribution, conspiracy and advertising charges with

the defendant’s own communications with an undercover officer, the child pornography videos

and images the defendant sent directly to the UC and also uploaded to the private KIK group, as

well as the defendant’s invitations to others to join this KIK group and vigorous exhortation to

provide child pornography material to remain in the group. In addition, although a complete

forensic analysis of the cell phone recovered from the defendant at the time of his arrest is not

yet complete, that analysis has so far found child pornography images stored on the defendant’s

9 phone and, further, that the defendant viewed child pornography images as recently as the

morning of his arrest and had an active presence on KIK groups, confirmed by the over 550 KIK

usernames he had stored with his KIK account. Therefore, the ample weight of the evidence

favors detention.

3. The History and Characteristics of the Defendant

As to the third factor requiring consideration of the defendant’s history and

characteristics, the defendant has no prior criminal history and has been employed. Yet, the

defendant’s employment was no bar to his access to viewing child pornography stored on his cell

phone while at work, and to maintaining an active and sophisticated presence, as both

administrator and owner, of a KIK group apparently dedicated to sharing large volumes of child

pornography. Moreover, the defendant’s quick response upon his arrest to offer the excuse that

his illegal conduct was actually intended to gather evidence about the illegal distribution of

contraband for law enforcement, suggests a facile tendency to dissembling that raises troubling

concern about whether his compliance with any release conditions can be monitored effectively.

In sum, this factor leans towards detention.

4 The Danger to the Community

The fourth factor, the danger to the community posed by defendant, also weighs in favor

of detention since the nature of the crimes charged—distribution of, conspiracy to distribute and

advertising to distribute child pornography—weighs heavily against release. As discussed in Part

III.1, supra, the distribution and possession of child pornography constitute a danger to the

community, resulting in physical and mental harm to the children depicted, normalizing such

conduct among those sharing this contraband, and creating a market for such contraband, and

thereby encouraging the victimization of more children. These significant harms and dangers

10 animated the Congress to create the statutory presumption of detention in these cases and

significant statutory mandatory minimum penalties as punishment and deterrence. For the

aforementioned reasons, the Court believes that the defendant presents a significant danger to the

community and, given the risks posed, finds that no condition or combination of conditions will

reasonably keep the community safe were the defendant to be released.

IV. CONCLUSION

For the foregoing reasons, upon consideration evidence proffered at the detention

hearing, the factors set forth in

(g), and the possible release conditions set forth

in Section 3142(c), the Court finds clear and convincing evidence that defendant’s pretrial

release would constitute an unreasonable danger to the community, and that no condition or

combination of conditions can be imposed that would reasonably ensure the safety of the

community were he to be released pending trial. Defendant has failed to rebut the presumption

in favor of pretrial detention required by Section 3142(e)(3)(E).

Accordingly, the government’s motion for continued detention is granted and the

defendant shall remain in the custody of the Attorney General for confinement pending a final

disposition in this case. An order consistent with this Memorandum Opinion and in accord with

(i), will be entered contemporaneously.

SO ORDERED.

Date: October 15, 2018

______________________ BERYL A. HOWELL Chief Judge

11