United States District Court, D. Arizona
LAWRENCE O. ANDERSON, Magistrate Judge.
The Government seeks the detention of Defendants Joseph S. Martin ("Martin") and Christopher J. Heikkila ("Heikkila") on the grounds that each of them is a serious flight risk, a danger to the community, and no release condition or combination of conditions exist that would reasonably assure their appearances at future court proceedings if they were released. See the Government's Motion for Detention and Removal to the United States, initially filed under seal on May 19, 2014, and, as a public document, on May 22, 2014. (Docs. 10, 16) The matter has been under advisement since May 29, 2014, pending the Court's review of post-hearing memoranda and analysis of the detention factors in 18 U.S.C. § 3142(g).
After considering the Government's and each Defendant's separate detention briefings; all the evidence and proffers at the detention hearing held over two days; the arguments of counsel; the controlling and persuasive authorities on the issues sub judice and all the factors set forth in 18 U.S.C. § 3142(g), the Court finds that the Government has proven by a preponderance of the evidence that each of the Defendants is a serious flight risk and no combination of conditions exist that would reasonably assure their appearance at future court proceedings if they were released from custody. Defendants shall remain detained pending resolution of this case.
Defendants Martin and Heikkila, each 19 years of age, were indicted by a Phoenix federal grand jury on May 14, 2014, and charged with Conspiracy to Commit Aggravated Sexual Abuse, Sexual Abuse, and Abusive Sexual Contact (Count 1), a Class A felony, in violation of 18 U.S.C. §§ 371, 2241(b)(1), 2242(2)(B), 2244(a)(2), and 3261(a)(1); Sexual Abuse (Count 2), a Class A felony, in violation of 18 U.S.C. §§ 2242(2)(B), 2246(3), 3261(a)(1), and 2; Abusive Sexual Contact, (Count 3), a Class E felony, in violation of 18 U.S.C. §§ 2244(a)(2), 2246(3), 3261(a)(1), and 2. See 18 U.S.C. § 3559(a), (1)-(5). (Doc. 3) Upon the grand jury's finding of probable cause, the sexual abuse charge raises a statutory rebuttable presumption "that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community[.]" 18 U.S.C. § 3142(e)(3)(E) (citing, among others, section 2242); see also United States v. McCarty, 2009 WL 5061577 (D. Haw. Dec. 24, 2009); United States v. O'Field, 2009 WL 920734 (N.D. Okla. March 27, 2009).
The crime of Sexual Abuse, under 18 U.S.C. § 2242(2)(B), has the following elements: 1) the defendant knowingly engaged in a sexual act with the victim; 2) the victim was physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act; and, 3) the offense was committed within the special meritime and territorial jurisdiction of the United States. See United States v. Fasthorse, 639 F.3d 1182, 1184 (9th Cir. 2011); United States v. James, 2013 WL 5423979, at *2 (D. Ariz. Sept. 26, 2013) ("Section 2242 was enacted in 1986..., which was intended to modernize and reform the federal rape statutes.").
Federal courts have held that sexual abuse may occur when the victims are incapacitated by alcohol or asleep. See United States v. Stamper, 507 Fed.Appx. 723, 724 (9th Cir. 2013) ("In sexual assault cases, a reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act.") (citing Fasthorse, 639 F.3d at 1184) (alteration omitted), cert. denied, 133 S.Ct. 2840 (2013); United States v. Barrett, 937 F.2d 1346, 1348 (8th Cir. 1991) (sustaining conviction for sexual abuse where the victim was physically incapable of declining participation in, or communicating unwillingness to engage in, the sexual act until after the act was complete when the testimony showed the victim was intoxicated and extremely tired, vaguely remembered someone pulling down her jeans and underwear, once fully awake, she realized defendant was on top of her and his penis was inside her vagina, and she immediately pushed defendant off her and ran out of the room).
A defendant commits the offense of abusive sexual contact, in violation of 18 U.S.C. § 2244(a)(2), when the defendant "knowingly engages in or causes sexual contact with or by another person, if to do so would violate... section 2242 of [Title 18] had the sexual contact been a sexual act." As previously mentioned, a violation of 18 U.S.C. § 2242(2) occurs where a person "knowingly... (2) engages in a sexual act with another person if that other person is... incapable of appraising the nature of the conduct; or physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act[.]" 18 U.S.C. § 2242(2).
The terms "sexual act" and "sexual contact" referred to in sections 2242 and 2244 are defined in 18 U.S.C. § 2246. A "sexual act" involves penile-genital contact, oral-genital contact, or genital penetration. 18 U.S.C. § 2246(2). "Sexual contact" means "the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(3).
The subject indictment alleges the crimes occurred in Landstuhl, Germany, which is near Ramstein Air Force Base, on or about October 19, 2013. The Government represents this criminal case involves the sexual assault and rape of a 17-year-old girl ("Jane Doe") while she was incapacitated due to voluntary intoxication. At the time the crimes were allegedly committed, Jane Doe and Defendants lived in Germany where the alcohol drinking age is 16 years for beer and wine and 18 years, the age of adulthood, for all other alcohol. (Doc. 16 at 3) The Government's investigation involved the interview of numerous individuals, including Defendants, Jane Doe, certain confidential witnesses, and a search and review of Defendants' messages sent to each other on Facebook and Twitter. According to the Government, in their Facebook messages, Defendants "[a]ppeared to plan the sexual assault of Jane Doe. Specifically, the defendants sent messages that included a discussion of who would engage in sexual activity with Jane Doe, how to get Jane Doe drunk at an upcoming party, and where the assault would occur." ( Id. )
On May 14, 2014, arrest warrants were issued by the Clerk of the District Court of Arizona. (Docs. 7-8) Defendants were arrested in Germany shortly thereafter, returned to the United States, and, on May 19, 2014, appeared before Phoenix Magistrate Judge John A. Buttrick, when counsel were appointed, pleas of not guilty entered, and each Defendant temporarily detained pending a detention hearing, which began on May 27, 2014. (Docs. 13-14, 21-23)
A. Jurisdiction and Venue
The Government asserts jurisdiction over the indicted offenses pursuant to the Military Extraterritorial Jurisdiction Act ("MEJA"), 18 U.S.C. §§ 3261-3267, which subjects certain individuals to prosecution in federal district courts for felonies committed outside the United States, if the offense would have been subject to federal prosecution within the special maritime and territorial jurisdiction of the United States, and the offense is punishable by imprisonment for more than one year. See United States v. Arnt, 474 F.3d 1159, 1161 (9th Cir. 2007). The categories of individuals who can be subject to federal prosecution pursuant to MEJA include, inter alia, individuals who are "employed by or accompanying the Armed Forces outside the United States." 18 U.S.C. § 3261. As alleged in the indictment, Martin and Heikkila were employed by and accompanied the Armed Forces in Germany at the time of the offenses were allegedly committed. (Doc. 3, ¶ 4 at 2)
Venue presumptively exists in the District of Arizona pursuant to 18 U.S.C. § 3238, because the conduct in the indictment allegedly occurred outside the jurisdiction of any particular State or District and the last known residence of Martin was Peoria, Arizona. ( Id., ¶ 7 at 2)
The Government has asserted in an unsealed search warrant affidavit that Martin was employed by the Armed Forces outside the United States, as defined by Title 18, United States Code, § 3267(1), as a clerk at the Army & Air Force Exchange, on the Ramstein Air Force Base, a non-appropriated fund instrumentality of the Department of Defense. See May 6, 2014 search warrant application and affidavit, ¶ 18 at C-7. According to the Government, Heikkila was residing in Weilerbach, Germany, and was also employed by the Armed Forces outside the United States, as defined by Title 18, United States Code, Section 3267(1), as a clerk at the Army & Air Force Exchange in Ramstein, Germany. Id., ¶ 19. Both Defendants are U.S. citizens.
II. The Bail Reform Act of 1984
"The Bail Reform Act [the "Act"], 18 U.S.C. §§ 3141-3150, authorizes and sets forth the procedures for a judicial officer to order the release or detention of an arrested person, pending trial, sentence, and appeal." David N. Adair, Jr., Federal Judicial Center, The Bail Reform Act of 1984, p. vii (3rd Ed. 2006). The Act mandates the release of a person pending trial unless the court "[f]inds 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." United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting 18 U.S.C. § 3142(e)); see also United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985). Conversely stated, "[a] district court may not order pretrial release unless it determines that a 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.'" United States v. Langenhorst, 130 Fed.Appx. 892, 893 (9th Cir. 2005) (reversing district judge's order releasing the defendant from detention). A district court engages in a two-step inquiry before ordering a defendant either released or detained pending trial. See United States v. Gentry, 455 F.Supp.2d 1018, 1020 (D. Ariz. 2006) (citation omitted). First, a district court must make a finding that, if released from custody, whether a defendant is a danger to "the safety of any other person and the community, " and/or there is "a serious risk [the defendant] will flee[.]" 18 U.S.C. §§ 3142(f)(1)(A)-(E), 3142(f)(2)(A)). Second, if a defendant poses a danger to the community and/or is a serious risk to flee, the district court must determine whether some set of conditions would sufficiently vitiate these risks. See 18 U.S.C. § 3142(g). The burden of proof rests with the Government, which must establish serious risk of flight by a preponderance of the evidence, and dangerousness by the higher standard of clear and convincing evidence for detention on the basis of danger. See Motamedi, 767 F.2d at 1406.
If a defendant rebuts the presumption of detention that arises under section 3142(e)(3), the presumption is not erased; "[r]ather 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 § 3242(g).'" Hir, 517 F.3d at 1086 (quoting United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986)). If a defendant proffers evidence to rebut the presumption of serious flight risk and dangerousness, a district court then considers the four factors in Section 3142(g):
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, 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 weight to be accorded to each of these factors rests in the district court's discretion. See Gentry, 455 F.Supp.2d at 1020 (citing United States v. Hollender, 162 F.Supp.2d 261, 264 (S.D.N.Y. 2001)). If released, the combination of release conditions must be the "least restrictive" that will reasonably assure a defendant's appearance at future court proceedings as required. See 18 U.S.C. § 3142(c)(B); Motamedi, 767 F.2d at 1405. Reminding district courts of the presumption of innocence and its corollary that the right to bail should be denied only for the strongest of reasons, the Motamedi court indicated that "[o]nly in rare circumstances should release be denied, " and any "[d]oubts regarding the propriety of release should be resolved in favor of the defendant." Id.
Although conditions of release may be imposed, "[t]hey contain one critical flaw. In order to be effective, they depend on [a defendant's] good faith compliance." Hir, 517 F.3d at 1092 (citing United States v. Tortora, 922 F.2d 922 F.2d 880, 886 (1st Cir. 1990) (concluding that a similarly extensive set of release conditions contained "an Achilles' heel... virtually all of them hinge on the defendant's good faith compliance").
III. Danger and/or Risk of Flight
To appreciate whether Defendants pose a danger to the safety of any other person and the community, or constitute serious flight risks, the Court will begin with a discussion of the factual details warranting the findings of probable cause of the charged crimes based on statements provided to law enforcement by the victim, Defendants, and third-party witnesses and other evidence presented at or for the detention hearing.
A. Jane Doe
According to the Government, Jane Doe was interviewed by law enforcement officers and provided the following information. On or about October 19, 2013, she attended her high school homecoming dance and later attended an "after party" at another student's home in Landstuhl. (Doc. 16 at 3) Jane Doe purportedly informed law enforcement that while at the party, she consumed several alcoholic beverages including beer, vodka, and some juice that was already made and contained alcohol. Jane Doe stated Martin approached her soon after she arrived at the party and started "small talk" with her. Jane Doe remembers drinking, at least, one drink provided by Martin early on at the party. ( Id. at 4) She described the drink as a small bottle of an unknown alcohol that had already been opened. She could not remember what kind of alcohol it was, but stated it looked like the ones sold in convenience stores containing about 1.5 ounces of alcohol.
At an unknown time, Jane Doe reported that she lost consciousness and awoke in the backseat of an unknown car. ( Id. ) Heikkila was knocking on the window. Jane Doe realized she was naked and Martin was in the back seat of the car with her. She felt as though someone had penetrated her vagina with something. She stated she could not remember getting dressed and did not know how she got into the car that took her home. ( Id. )
The Government informs the Court that, on November 6, 2013, Martin was interviewed by law enforcement officers. No information has been provided the Court whether the interview was recorded or who was present during the interview. The Government claims Martin admitted that both he and Heikkila engaged in sexual activity with Jane Doe at the party and that she was intoxicated and incapable of consenting to any sexual act or contact. ( Id. ) Martin explained that he kissed Jane Doe briefly while they were inside the party, but she abruptly stopped and walked away. He stated that when she walked away, he was "confused and depressed" and he was "disappointed" because he did not have another girl to be with that night. He added that he "wanted to get with" Jane Doe that night but he "did not want to have sex with her while she was so drunk." ( Id. ) Martin stated that after he kissed Jane Doe, he and Heikkila talked about her. Heikkila told him that she was "pretty drunk" so Martin should "do it" or he [Heikkila] would. Martin understood Heikkila to mean that Martin should have sex with Jane Doe or Heikkila would. Martin then admitted to law enforcement that he "knew it was wrong to have sex with her because she was so drunk but I just did it because C.J. [Heikkila] pressured me to." ( Id. at 4-5)
The Government represents that Martin explained to law enforcement that around 1:00 a.m. on October 20, 2013, he and Heikkila assisted Jane Doe out of the party. Martin was on one side of her and Heikkila was on the other because Jane Doe could not walk on her own. ( Id. at 5) At one point, one of them let go of Jane Doe's arm and they caught her before she fell down to the ground. In addition, on the way to the car, Jane Doe vomited. ( Id. ) When they arrived at Heikkila's car, Martin and Heikkila laid Jane Doe down in the back seat with her feet hanging out of the car on the ground. Heikkila got in first and started to kiss Jane Doe. Heikkila told Martin that he would only take 10 minutes because he knew that Martin wanted to have sex with her when he was done. ( Id. ) Martin stated that while Heikkila was in the car, Jane Doe appeared to just be "lying there." Martin then told Heikkila to stop because his time was up and it was his turn with Jane Doe. ( Id. ) Heikkila did not stop so Martin went back to the party to gather some friends to get Heikkila to stop. As Martin arrived back at the party, Heikkila returned, too, and told Martin he was done. ( Id. )
Martin and Heikkila then returned to the car. Jane Doe was still lying in the same position with her feet hanging out of the car and the door open. Heikkila climbed onto the trunk of the car to act as a "look-out" as Martin climbed on top of Jane Doe and started to kiss her. Martin admitted that he proceeded to touch her breasts over her clothes and under her clothes, he performed oral sex on Jane Doe, he digitally penetrated her vagina with his fingers, he removed all of her clothes, and then engaged in vaginal intercourse with her, both with and without a condom. ( Id. ) According to the Government, Martin initially told law enforcement that Jane Doe stroked his penis and "most of the time she was helping my penis and making sure it was penetrating her." Later, however, he informed law enforcement that in order to have intercourse with her, Martin used his own hands to guide his penis into Jane Doe's vagina. ( Id. ) He admitted that at times while he was performing various sex acts on Jane Doe, she was passed out. ( Id. at 5) Martin stated that she was "kind of breathing and moving around but I guess everyone does that when they sleep." Martin also admitted that at no time did Jane Doe tell him that he could have sex with her. ( Id. )
The Government informs the Court that Heikkila was also interviewed by law enforcement on November 6, 2013. No information has been provided the Court whether the interview was recorded or who was present during the interview. Omitting duplicative statements for brevity purposes only, the Government indicates that Heikkila told law enforcement that he observed Martin talk to Jane Doe, give her a drink, and play beer pong together. ( Id. at 6) Heikkila stated that the three of them left the party together and walked to his car where Heikkila asked Jane Doe if she wanted to lay down in his car because it was cold outside. Heikkila purportedly told law enforcement he then asked Jane Doe how she was doing and if it would be weird if they kissed. Jane Doe said that she was feeling better and it would not be weird if they kissed. Heikkila then entered the car and kissed Jane Doe for approximately 3-5 minutes. Heikkila claimed he asked Jane Doe while they were kissing if she knew who he was and what they were doing. Heikkila said she did not respond at first and then she opened her eyes and said, "you're C.J." and "we're kissing." ( Id. ) Thereafter, Heikkila allegedly admitted he continued to kiss Jane Doe; touched her breasts, both over and under her clothes; and touched her "pelvic area" between her waist-line and her vagina.
The Government reports that Heikkila claimed "he stopped [presumably having sex with Jane Doe] when he saw Martin outside with three other males from the party." ( Id. ) Heikkila reported he exited the vehicle and saw that Martin was upset. ( Id. ) Heikkila then allegedly said to Martin, "Either you go do it, or I will." Heikkila explained to law enforcement that he meant that either Martin should have sex with Jane Doe or he [Heikkila] was going to have sex with her. Heikkila then observed Martin get in the car with Jane Doe. He saw Martin perform oral sex on Jane Doe, then put on a condom, and engage in sexual intercourse with Jane Doe. ( Id. at 7)
According to the Government, Heikkila also admitted to sending a message via his Twitter account while Martin was having sex with Jane Doe. ( Id. ) The tweet read, "lol my nigga gettin it." Heikkila confirmed he was talking about Martin having sex with Jane Doe. ( Id. )
The Government's investigation also included interviewing, at least, two 18-year old male acquaintances of Martin and Heikkila, who were at the party. Described as Confidential Witness #1 and #2 in the Government's motion, id, these witnesses corroborate seeing Jane Doe in the vehicle's back seat and that she appeared to be passed out. Confidential Witness #2 purportedly told law enforcement that Martin came to him and CW-1 during the party and told them that "C.J.' [Heikkila] was raping Jane Doe." ( Id. ) CW-2 and CW-1 left with Martin to go to the car. When they arrived, Heikkila was getting out of the car where Jane Doe was lying in the backseat. Heikkila told them that nothing was going on and he was "not raping" Jane Doe. ( Id. ) CW-2 then saw Martin get in the car with Jane Doe. CW-1 then left.
In light of the grand jury's finding of probable case that Defendants committed the crime of Sexual Abuse, a statutory rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of the community and the appearance of Defendants as required if released. See 18 U.S.C. § 3142(e)(3)(E) (citing, among others, section 2242 as an "offense involving a minor victim"); see also McCarty, 2009 WL 5061577; O'Field, 2009 WL 920734. Thus, at this initial stage of the detention analysis, the Court finds that Defendants are both a danger to the community and serious flight risks and must be detained pending trial.
IV. Factors to Consider Regarding Safety and Appearance
1. Nature and Circumstances of the Crimes Charged
The crimes of sexual abuse, 18 U.S.C. §§ 2242(2)(B), 2246(3), and abusive sexual contact, 18 U.S.C. §§ 2244(a)(2), 2246(3), are each a "crime of violence, " as defined by 18 U.S.C. § 3156(a)(4). While the Ninth Circuit has not specifically addressed whether either of these crimes are crimes of violence within the context of the Bail Reform Act, it has determined that abusive sexual contact under 18 U.S.C. § 2244(a)(3) is a crime of violence within the meaning of U.S. Sentencing Guidelines. See United States v. Granbois, 376 F.3d 993, 996 (9th Cir. 2004); United States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003) (explaining that crimes involving the sexual abuse of a minor are per se "crimes of violence."). The Granbois court specifically noted that "[w]hether non-forcible sexual contact between a nineteen-year old and a fifteen-year old actually presents a serious risk of physical injury to another is a question we need not decide." 376 F.3d at 995.
Here, there are no allegations of distribution of controlled substances or the possession or use of a firearm or dangerous instrument, but, of course, Jane Doe was a minor when the crimes in the indictment were allegedly committed. The Tenth Circuit has written that "[c]ases involving sex crimes against minors, are considered violent crimes because there is always a substantial risk that physical force will be used to ensure a child's compliance with an adult's sexual demands." United States v. Grigsby, 270 Fed.Appx. 726 (10th Cir. 2008) (defendant convicted of Aggravated Sexual Abuse of a Minor in Indian Country, in violation of 18 U.S.C. § 1151, 1153, 2241, and 2246(2)(C)) (quoting United States v. Munro, 394 F.3d 865, 870 (10th Cir. 2005) (internal quotation marks omitted). In Grigsby, the court found that the "charged crime [Aggravated Sexual Abuse of a Minor] meets the definition of crime of violence' under the Bail Reform Act, 18 U.S.C. § 3156(a)(4)(B)."). Id.; see also United States v. Abraham, 2006 WL 3145993, at *1 (W.D. Pa. Oct. 31, 2006) (finding crimes involving child pornography, and other felonies under chapter 110, are crimes of violence under the Bail Reform Act) (collection of cases omitted).
The Court finds that the crimes of Sexual Abuse and Abusive Sexual Contact are crimes of violence under the Bail Reform Act. In light of this finding and the very serious nature and circumstances of the crimes charged, the Court concludes that the first section 3142(g) factor strongly favors the Government's request that Defendants remain detained.
2. Weight of the Evidence against Defendant
Of the four detention factors a district court must consider, the Ninth Circuit has instructed that the weight of the evidence is the least important factor. Motamedi, 767 F.2d at 1407; United States v. Honeyman, 470 F.2d 473, 474 (9th Cir. 1972).
The strength of the Government's case against the Defendants is "overwhelming, " as Government's counsel correctly labeled it during argument at the detention hearing. The interviews of Jane Doe and confidential witnesses corroborate the very damaging admissions each Defendant provided to law enforcement only three weeks after the party. Documentary evidence presented in the Government's detention motion demonstrates Defendants' plan was premeditated, beginning a month before the party, and not spontaneous criminal conduct fueled by alcohol and an overabundance of testosterone. The following exchanges or posts between Defendants were discovered on Facebook pursuant to a federal search warrant regarding their plan to get underage girls drunk at the party and then have sex with them. The posts confirm Martin and Heikkila knew such conduct was illegal and carried a risk of going to jail. The following pre-indictment message excerpts are a treasure trove of information, offering candid insight into relevant detention issues and character traits of Defendants generated before and after the party:
A. Facebook Messages Before the Party Targeting Jane Doe
1. September 19-20, 2013:
Martin: [MALE MINOR'S NAME REDACTED] having a fucking party.
Heikkila: I'm scared about [FEMALE MINOR's NAME REDACTED]
Martin: Why lolz
Heikkila: If we mess around... I could go to jail
Martin: Worth it. That 21 year old didn't go to jail. Lmfao
Heikkila: I guess we'll see. I'm worried about that kind of stuff with you though. Like, you realize I could go to jail and be labeled a child molester for the rest of my life? Or a sex offender....
Heikkila: I need a bro's perspective man.
Martin: I guess if you wanna go for it. Like you'd be cool if I had sex with a 13 year old girl if we were deeply in love
Martin: It's not about the sex. It's about the feels.
Heikkila: That's what I'm sayin. I bet she fucks like a ...