United States District Court, D. Nevada
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Justin Fisher's
(“Justin”) Renewed Motion to Eliminate Separation
Order (ECF No. 58), filed on November 8, 2017. The Government
filed a Response (ECF No. 60) on November 21, 2017. Defendant
did not file a reply brief.
and his twin brother, Joshua Fisher (“Joshua”)
(collectively referred to as “the Brothers”), are
charged in a eleven count Superseding Indictment (ECF No. 61)
filed on November 28, 2017 with: conspiracy to commit sexual
exploitation of children in violation of 18 U.S.C. §
2251(a) and (e); sexual exploitation of children in violation
of 18 U.S.C. § 2251(a) and (e); distribution of child
pornography in violation of 18 U.S.C. § 2252A(a)(2) and
(b); receipt of child pornography in violation of 18 U.S.C.
§ 2252A(a)(2) and (b); possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B); and coercion
and enticement in violation of 18 U.S.C. § 2422(b)
was initially detained pending trial by Magistrate Judge
Hoffman on February 16, 2017, which was later affirmed by
Judge Gordon. Detention Order (ECF No. 9);
Order (ECF No. 37). Joshua was detained pending
trial by Magistrate Judge Leen on April 7, 2017, which was
affirmed by Judge Dorsey. Detention Order (ECF No.
13); See Case No. 2:17-cv-01154-JAD-GWF, Minutes
of Proceedings (ECF No. 6). Both brothers are detained
at the Nevada Southern Detention Center in Pahrump, Nevada
(“Detention Center”). The Government requested
that the Brothers be housed separately in order to ensure
that they could not have direct contact with one another,
except when meeting jointly with their defense counsel. The
Detention Center has complied with this request.
Brothers initially moved to eliminate the separation order in
June 2017. See Case No. 2:17-cv-01154-JAD-GWF,
Motion to Eliminate Separation Order (ECF No. 7).
The motion was based on two arguments. First, the Brothers
argued that they need to communicate directly with each
other, and not just when their attorneys are present, in
order to adequately prepare their defenses. Thus, they
asserted that the “separation order” violates
their Sixth Amendment rights. Second, because the separation
order results in one of the Brothers being in administrative
segregation at any given time, they impliedly argued that the
order is punitive and violates their rights to due process of
law. Id. The Court denied the motion and found that
the separation order was reasonably related to the
Government's legitimate interest in ensuring that the
Brothers did not work together to commit criminal acts or
interfere with victims and witnesses. Order (ECF No.
31). The Court, however, set the matter for a status check in
60 days to revisit the need for the separation order.
Court conducted a status conference on September 7, 2017.
Minutes of Proceedings (ECF No. 49) and (ECF No.
50). Again, the Brothers moved to eliminate the separation
order. The Government argued against removal and further
moved for the Brother's telephone privileges to be
revoked pursuant to Valdez v. Rosenbaum, 302 F.3d
1039 (9th Cir. 2002). The Government informed the Court that
the Brothers had violated the Court's orders and
circumvented the separation order by having a friend or
family member initiate three-way calls so that the Brothers
could speak to one another. The Government specifically
referenced recently received jail calls wherein the Brothers
lied to their respective wives about violating the
Court's order and discussed ways to destroy evidence with
their other brother Eric. Following the Government's
proffer, the Court again declined to lift the separation
order and the Court prohibited the Brother's telephone
privileges. Id. Because the Government had just
received the telephone calls and had not yet provided them to
the Brother's counsel, the Court advised the
Brother's that they may move for reconsideration of the
order after reviewing the calls.
November 8, 2017, Justin filed the instant renewed motion to
eliminate the separation order. Justin argues that the
constant rotation of he and his brother in
“administrative segregation” (i.e. solitary
confinement) is causing Justin “significant
distress.” He further argues that “[t]here is no
reason the facility's security procedures are in adequate
[sic] to address any concern by the Government for two
inmates who have been in custody together for over
9-months.” Motion (ECF No. 58), pg. 2, lns
20-22. Justin also argues that the separation order also
negatively impacts his ability to adequately prepare his
defense with his counsel.
Government argues that Justin's motion fails to raise any
legal or factual basis for the Court to reconsider its prior
order; fails to address any of the arguments raised by the
Government during its proffer; and fails to discuss or even
reference the jail calls discussed by the Government during
the status conference. Response (ECF No. 60), pg. 4.
The Court agrees. During the September 7, 2017 status
conference, the Government presented sufficient evidence to
indicate that the Brothers have violated or attempted to
violate the Court's prohibition to communicate with one
another even while under the separation order. Justin's
motion fails to address that evidence and instead argues that
the administrative segregation causes him “significant
distress.” This is not sufficient good cause to warrant
an order rescinding the separation order given the evidence
offered by the Government during the status conference.
also unclear to the Court how the separation order affects
Justin's (or his brother's) ability to prepare for
their defense and Justin's motion does not provide a
factual explanation for his assertion. The Court's
prohibitions do no apply to either of the Brother's
communications with their counsel and the Court has allowed
the Brothers to jointly meet and communicate while in the
presence of counsel. Therefore, this argument is equally
unpersuasive. Accordingly, . . . . . .
IS HEREBY ORDERED that Defendant Justin Fisher's
Renewed Motion to Eliminate ...