United States District Court, D. Nevada
ORDER DENYING MOTION FOR PRETRIAL RELEASE (Docket No.
J. KOPPE United States Magistrate Judge
before the Court is Defendant David Alan Cohen's motion
for pretrial release. Docket No. 71. The Court has considered
Defendant's motion and the United States' response.
Docket Nos. 71, 97. No reply was filed. See Docket.
For the reasons discussed below, the Court hereby
DENIES the motion for pretrial release.
September 23, 2016, a criminal complaint was issued, charging
Defendant with possession of child pornography, in violation
of Title 18, United States Code, Section 2252A(a)(5) and
receipt of child pornography, in violation of Title 18,
United States Code, Sections 2252A(a)(2) and (b). Docket No.
1. On the same day, Defendant appeared before the Court for a
detention hearing. Docket No. 3.
Court appointed the Federal Public Defenders Office as
counsel for Defendant. Id. After hearing
representations from both counsel, the Court ordered
Defendant detained pending trial. Id. The Court
Based on the allegations set forth in this Complaint,
information set forth in the government's proffer, as
well as the information provided to the Court by Pretrial
Services, the Court finds that there is a rebuttable
presumption that the defendant poses a substantial risk of
nonappearance and a danger to the community. The defendant is
facing enhanced mandatory minimums in this case. According to
the defendant, his sexual interest in children goes back to
the time he was a child. The defendant's first conviction
for sex with a child appears to have been when he was
eighteen years old and has continued on throughout his life.
Despite the defendant's last conviction in 1990 and the
fact that he did not have any interaction with law
enforcement since then, it is clear from the complaint that
the defendant has been involved with possessing and receiving
child pornography for some time. Child pornography was found
on the defendant's computer, that he states belongs only
to him, and DVDs were found as well. The images in the
complaint are of children, mostly females, all of whom are
approximately the same age as the step-granddaughter that
lives with him. The defendant's criminal history relating
to sex to children goes back a long time. On two occasions on
the 1990 conviction, in 1994 and 1995, the defendant's
parole was revoked due to parole violations. The
defendant's job is currently on the Internet and it
appears that is all he has done for a long period of time.
Additionally, some of the information given by the defendant
to Pretrial Services differs from the information given by
the defendant's wife, specifically information regarding
the defendant's job and travel out of the country. As a
result, the Court finds that the defendant has not rebutted
the presumption in this case and that there are no conditions
or combination of conditions that the Court could fashion at
this time to reasonably assure the defendant's future
appearance in Court or to protect the community against the
risk of danger posed by the defendant. Accordingly, the
defendant is ORDERED DETAINED pending trial.
Docket No. 7 at 2.
preliminary hearing in this matter was continued at the
parties' request on four separate occasions. Docket Nos.
9, 11, 13, 24. On April 12, 2017, a federal grand jury
sitting in Las Vegas, Nevada issued an indictment charging
Defendant with possession of child pornography, in violation
of Title 18, United States Code, Section 2252A(a)(5); and
receipt or distribution of child pornography, in violation of
Title 18, United States Code, Sections 2252A(a)(2) and (b).
Docket No. 37.
January 19, 2017, Defendant's counsel filed a motion to
withdraw as counsel. Docket No. 17. On January 25, 2017, the
Court held a hearing on counsel's motion. Docket No. 20.
The Court granted the motion, and set an attorney appointment
hearing for the same day. Id. On January 25, 2017,
the Court held an attorney appointment hearing, and appointed
David R. Fischer as Defendant's counsel. Docket Nos. 21,
23. On February 22, 2017, Defendant filed a motion to proceed
pro se and a motion for the Court to conduct a
Faretta hearing. Docket Nos. 25, 26. On March 1,
2017, the Court granted Defendant's motion to conduct a
Faretta hearing, and set the hearing for March 8,
2017. On March 8, 2017, after the Court conducted a
Faretta canvass, Defendant asked to withdraw his
motion to proceed pro se. Docket No. 28. The Court
granted his request and ordered that Mr. Fischer was to
remain as counsel for Defendant. Id.
March 28, 2017, Defendant filed a second motion to proceed
pro se. Docket No. 30. The Court set a hearing on
Defendant's motion for April 3, 2017. Docket No. 31. On
April 3, 2017, the Court conducted a Faretta canvass
of Defendant. Docket No. 32. During the canvass, the Court
specifically told Defendant that the condition that he may
not have access to the Internet would not change if he
represented himself. Hearing Tr. (4/3/2017) at 10:11
Defendant responded, “I don't have access to the
Internet at this point, so I ... if I am so released, though,
and that is not a condition, it would be relaxed,
correct?” Hearing Tr. (4/3/2017) at 10:11 a.m. The
Court told Defendant that, because of the charges against
him, no access to the Internet is one of the conditions that
is required to be imposed even if he were released. Hearing
Tr. (4/3/2017) at 10:11 a.m. Defendant responded that,
“we can discuss that later on. Go ahead.” Hearing
Tr. (4/3/2017) at 10:11 a.m. The Court said, “No,
we're not discussing that later on, Mr. Cohen, we're
discussing that now. Do you understand that if you represent
yourself, you will not be able to access the Internet?”
Hearing Tr. (4/3/2017) at 10:11 a.m. After some more
discussion, Defendant agreed that he was detained, and that
he understands he may not access the Internet. Hearing Tr.
(4/3/2017) at 10:12 a.m. After finishing the full
Faretta canvass, the Court found that Defendant
knowingly, intelligently, and unequivocally waived his right
to counsel. The Court therefore granted his motion to proceed
pro se, and appointed David Fischer as standby counsel.
Docket No. 32.
5, 2017, Defendant filed a motion for pretrial release.
Docket No. 56. On May 12, 2017, the Court denied
Defendant's motion without prejudice as he had failed to
sign the document. Docket No. 61. See Fed.R.Crim.P.
49(d). On May 18, 2017, Defendant filed the instant motion
for pretrial release. Docket No. 71. In his motion, Defendant
complains that he should have been granted release at his
arraignment and plea hearing. Id. at 1-2.
Additionally, Defendant submits that he needs to be released,
with no conditions, so that he can properly prepare his
defense. Id. at 2.
response, the United States submits that Defendant has failed
to provide new or material information in support of his
motion and, therefore, his detention hearing should not be
reopened. Docket No. 97 at 1-2. The United States submits
that, while Defendant “complains about the same issues
he has complained about in his multiple motions, ” he
“offers zero new information that would have a material
impact on his release.” Id. at 2.
18, United States Code, Section 3142(f) states, in relevant
part, that a detention hearing may be reopened “at any
time before trial if the judicial officer finds that
information exists that was not known to the movant at the
time of the hearing and that has a material bearing on the
issue whether there are conditions of release that will
reasonably assure the appearance of such person as required
and the safety of any other person and the community.”
Courts interpret this provision strictly. United States
v. Bararia, 2013 U.S. Dist. LEXIS 67820, *9 (D.Nev.
2013). The rule “requires that the movant, whether
prosecutor or defendant, establish: (1) that information now
exists that ...