United States District Court, D. Nevada
ORDER DENYING MOTION FOR RECONSIDERATION (DOCKET NO.
J. KOPPE United States Magistrate Judge
before the Court is Defendant David Alan Cohen's motion
for reconsideration. Docket No. 124. The Court has considered
Defendant's motion and the United States' response.
Docket Nos. 124, 140. No reply was filed. See
Docket. For the reasons discussed below, the Court hereby
DENIES the motion for reconsideration.
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:
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parole was revoked due to parole violations.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.
18, 2017, Defendant filed a second 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. Id. at 1-2. Additionally,
Defendant submitted that he needed to be released, with no
conditions, so that he can properly prepare his defense.
Id. at 2. The United States submitted, in response,
that Defendant 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 further submitted that, while Defendant
“complain[ed] about the same issues he has complained
about in his multiple motions, ” he “offer[ed]
zero new information that would have a material impact on his
release.” Id. at 2.
22, 2017, the Court denied Defendant's motion for
pretrial release. Docket No. 114. The Court found that
Defendant had failed to submit information that was both new
and material to release conditions regarding flight risk or
danger to the community. Id. at 4-5. In its original
detention order, the Court “found Defendant to be a
risk of nonappearance and a danger to the community for
reasons including, but not limited to, the unrebutted
presumption of detention, the enhanced mandatory minimum
sentence, his long-term sexual interest in children, and his
prior parole violations.” Id. at 5. The Court
held that “Defendant's dislike of his standby
counsel and decision to proceed pro se do not rebut
the presumption of detention and do not materially affect the
findings of the Court that he is a risk of nonappearance and
a danger to the community such that no condition or
combination of conditions can be fashioned to address these
risks.” Id. Defendant now asks the Court to
reconsider its decision. Docket No. 124.
the Federal Rules of Criminal Procedure do not contain a
provision specifically allowing motions for reconsideration,
numerous circuit courts have held that motions for
reconsideration may be filed in criminal cases. See
United States v. Martin, 226 F.3d 1042, 1047 n. 7 (9th
Cir. 2000) (post-judgment motion for reconsideration may be
filed in a criminal case and governed by Fed.R.Civ.P. 59(e));
United States v. Fiorelli, 337 F.3d 282, 286 (3d
Cir. 2003) (motion for reconsideration allowed in criminal
case and governed by Fed.R.Civ.P. 59(e) or Fed.R.Civ.P.
60(b)); United States v. Clark, 984 F.2d 31, 33-34
(2d Cir. 1993) (motion for reconsideration filed in criminal
case within 10 days of subject order is treated under
Fed.R.Civ.P. 59(e)). Motions for reconsideration in criminal
cases are governed by the rules that govern equivalent
motions in civil proceedings. See United States v.
Hector, 368 F.Supp.2d 1060, 1062-63 (C.D. Cal. ...