United States District Court, D. Nevada
ORDER DENYING MOTION FOR IMMEDIATE RELEASE (Docket
before the Court is Defendant David Alan Cohen's motion
for immediate release. Docket No. 98. The Court has
considered Defendant's motion, the United States'
response, and Defendant's reply. Docket Nos. 98, 112,
120. For the reasons discussed below, the Court hereby
DENIES the motion for immediate 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. The 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 found that:
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1995, the defendant's parole was revoked due to parole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
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.
18, 2017, Defendant filed a motion for pretrial release.
Docket No. 71. In his motion, Defendant submitted that he
should have been granted release at his arraignment and plea
hearing, and that he needed to be released, with no
conditions, to properly prepare his defense. Id. at
1-2. On June 22, 2017, the Court denied Defendant's
motion, finding that the information submitted by Defendant
did not constitute new and material information for the
purpose of reopening his detention hearing. Docket No. 114.
5, 2017, Defendant filed the instant motion for immediate
release. Docket No. 98. Defendant submits that, as no arrest
warrant was signed, he was illegally arrested and so he
should be released. Id. Defendant also submits that
his indictment was delayed too long. Id. at 3-4.
Finally, Defendant seems to believe that some sort of
conspiracy exists between his first attorney, the United
States Marshal, and the undersigned. Id. at 5.
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. 112 at 1-2. Further, the United States
submits that Defendant has failed to provide points and
authorities to support his argument. Id. at 2.
replies with ad hominem attacks on the prosecutor.
Docket No. 120. He further attacks the complaint filed in the
instant case, as well as the fact that an arrest warrant was
not issued. Id. Defendant ends his reply by stating
that the case against him must be dismissed, and asks for
release from custody. Id. at 6.