United States District Court, E.D. New York
For the government: Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, New York; Allen Lee Bode, Ameet B. Kabrawala, Central Islip, NY.
For Defendant: Anthony M. LaPinta, Reynolds, Caronia, Gianelli, Hagney, LaPinta & Hargraves, Hauppauge, NY; Leonard Lato, Central Islip, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, United States District Judge.
On March 5, 2014, a grand jury charged defendant Joseph Valerio (" defendant" or " Valerio" ) in a superseding indictment with three counts of sexually exploiting a child, in violation of 18 U.S.C. § § 2251(a), 2251(c), and 2251(e); one count of transporting child pornography, in violation of 18 U.S.C. § § 2252(a)(1) and 2252(b)(1); one count of receiving child pornography, in violation of 18 U.S.C. § § 2252(a)(1) and 2252(b)(1); and one count of possessing child pornography, in violation of 18 U.S.C. § § 2252(a)(4)(B) and 2252(b)(2). Defendant is in custody pursuant to an Order of Detention issued on February 28, 2014,
after the grand jury first indicted Valerio on February 26, 2014.
Presently before the Court is defendant's second motion for release from custody, supplementing his original proposal--which this Court rejected following a hearing on March 6, 2014--with two security officers posted at his home 24 hours a day, seven days a week, with one officer stationed inside the house and the other officer stationed either inside the house or outside in a car. (Second Motion for Release From Custody (" Second Motion" ), Docket No. 20.) Although styled as motions for bail, the Court considered the bail issue under a de novo standard, with the government bearing the burden, and the Court denied both applications for the reasons set forth in detail on the record. The Court now memorializes its reasons for the denial of both bail applications, which the Court denied orally on the record during the hearings on March 6 and March 21, 2014.
Specifically, as set forth below, the Court concludes that the government has met its burden to show, by clear and convincing evidence and by a preponderance of the evidence, respectively, and independent of the statutory presumption of detention in this case, that no condition or combination of conditions, even the ones proposed by defendant, will reasonably assure the safety of the community or defendant's appearance in court. Accordingly, the Court orders that Valerio shall remain detained pending trial.
The charged crimes arise from defendant's alleged production of child pornography involving a then three-year old female victim in Ukraine, and his production of child pornography involving a then six-year old female victim at defendant's Smithtown, New York residence. The most serious of these charges carries a mandatory minimum of no less than 15 years imprisonment. See 18 U.S.C. § 2251(e). Defendant's estimated advisory Sentencing Guidelines range, as noted during the hearing on March 6, 2014, is at least approximately 292 to 365 months of incarceration.
The defendant was arrested on January 28, 2014, and a criminal complaint was filed on that same day and sworn to by FBI Special Agent Steven Troyd. The complaint charged defendant with sexual exploitation of a child in violation of 18 U.S.C. § § 2251(a) and 2252(a)(4)(B). According to the complaint, beginning on or about April 2012, defendant aided and abetted the production of child pornography by a woman in Ukraine. Specifically, the complaint asserts that the woman, at defendant's request and instruction, filmed herself with her three-year-old daughter (who will be referred to as " Jane Doe #1" ) doing various sexually explicit acts scripted by Valerio, and sent those videos to defendant through her mobile phone and parcel delivery service. According to the complaint, defendant and the woman also exchanged emails regarding the videos and sexually explicit acts. On January 28, 2014, the defendant was detained by Magistrate Judge William D. Wall, but with leave to reopen and present a bail package in the future.
After defendant's arrest and detention on January 28, 2014, Magistrate Judge A. Kathleen Tomlinson conducted a detention
hearing, pursuant to 18 U.S.C. § 3142(f)(1)(E), on February 4, 2014. Over the government's objection, Magistrate Judge Tomlinson authorized the release of defendant on bail on a secured bond, subject to certain conditions. Those conditions included, inter alia, (1) confessions of judgment totaling $3 million and secured by real property owned by defendant's mother, (2) confinement at his mother's house, (3) installation of government-approved surveillance equipment to permit monitoring of persons entering and exiting the house, and (4) a prohibition on the use of a computer or cell phone. Following the installation of the surveillance equipment, defendant was released on bond on February 12, 2014.
Further, on January 28, 2014--the day Troyd filed the first complaint--the FBI executed a search warrant at defendant's residence. According to a second complaint filed by the government on February 25, 2014, a forensic expert recovered approximately twenty-two images of a young girl (who will be referred to as " Jane Doe #2" ), approximately age six, that previously were deleted from the SD card of a camera. According to the second complaint, among the recovered images were nude photographs of Jane Doe #2 (summarized in the complaint), including a photograph of her genital area, which appeared to be red. Special Agent Troyd stated, " Based upon my discussions with law enforcement personnel familiar with sexual abuse investigations who have examined these images, this is consistent with the sexual abuse of Jane Doe #2." (02/25/14 Compl. ¶ 4.) The complaint also noted that " [i]nvestigators present at the search of the residence of defendant JOSEPH VALERIO who viewed the child pornography images of Jane Doe #2 recognized the basement and couch from VALERIO's Smithtown residence and recognized Jane Doe #2 in the images." ( Id. ¶ 6.) Finally, the complaint provided the following summary of the interview of Jane Doe #2:
On February 24, 2014, Jane Doe #2 was interviewed. Jane Doe #2 confirmed that during sleepovers at the residence of JOSEPH VALERIO, she had been taken down into VALERIO's basement, where he took video of her in various outfits. Jane Doe #2 described the outfits, which matched the outfits in the recovered images. After describing these outfits, Jane Doe #2 was shown non-pornographic images from the series of recovered images and identified herself in the images. Although Jane Doe #2 denied that she had been touched by VALERIO or that he had taken naked pictures of her, she identified images in the same series of recovered images as the sexually explicit images described above. In addition, the child described the circumstances where the images were created (i.e. VALERIO's basement), indicated that VALERIO took video of her and described the outfits visible in the images (prior to these images being shown to her for identification). Based upon conversations with law enforcement personnel familiar with child abuse investigations of children the same age as Jane Doe #2, it is common for children who have been abused to initially be fearful of revealing such abuse to law enforcement as they have often been threatened or coached as to not revealing this information.
( Id. ¶ 7.). The photographs are alleged to have been taken in defendant's basement between September 2010 and January 2011.
On February 25, 2014, following the filing of the second criminal complaint, Magistrate Judge Gary R. Brown detained the defendant on grounds of danger to the
community and risk of flight. On February 26, 2014, the grand jury returned an indictment against the defendant charging him with two counts of sexual exploitation of a child, one count of transportation of child pornography, as well as one count of possession of child pornography, in connection with Jane Doe #1.
On February 28, 2014, defendant was arraigned on the indictment and defense counsel stated that he wanted some additional time to present a bail package to the Court. Accordingly, on consent, the Court ordered the defendant detained without prejudice to a future bail application. On March 5, 2014, the grand jury returned a superseding indictment that added one count of sexual exploitation of a child in connection with Jane Doe #2.
On March 6, 2014, the defendant was arraigned on the superseding indictment, and he moved for release from custody based upon the following proposed bail package: (1) a $3 million dollar secured bond subject to a home confinement; (2) GPS electronic monitoring; (3) an outdoor video surveillance system to be accessed at will by the FBI; (4) government approval for any persons entering the house; (5) one private security officer posted outside; (6) searches of all persons entering or exiting the home; (7) unannounced searches of the house and all persons therein; and (8) a prohibition on the possession of cell phones, computers, and the like. After a hearing on March 6, 2014, in a detailed ruling on the record, the Court found that the government had met its burden of demonstrating, by clear and convincing evidence on the issue of dangerousness, and by a preponderance of the evidence on the issue of risk of flight, that no condition or combination of conditions (including those proposed by the defendant) could reasonably assure the safety of the community or defendant's appearance in court.
Defendant renewed the application on March 20, 2014, supplementing it by proposing two security officers (rather than just one officer) posted 24/7, with one stationed inside the house and the other either inside the house or outside in a car. The government opposed (Opposition, Docket No. 21), and defendant replied (Reply, Docket No. 22). On March 20, 2014, for the reasons set forth on the record, the Court denied the renewed bail motion and adhered to its previous ruling.
II. Legal Standard
Pursuant to the Bail Reform Act, if a court determines that release on an appearance bond is not sufficient, the court shall order pretrial release " subject to the least restrictive . . . condition, or combination of conditions, that [the court] determines 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(c)(1)(B). The court, however, must order the detention of the accused pending trial where, following a hearing in accordance with § 3142(f), the court " 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); see United States v. El-Hage, 213 F.3d 74, 76 (2d Cir. 2000); United States v. Gotti, 358 F.Supp.2d 280, 282 (S.D.N.Y. 2005).
In light of the charged conduct in this case, there is a statutory presumption that no such conditions exist. See 18 U.S.C. § 3142(e)(3)(B). A defendant may nevertheless rebut that presumption with evidence that she or he is not a danger to the community or a risk of flight. See United States v. Mercedes, 254 F.3d 433, 436 (2d ...