The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Presently before the court is the government's appeal of Magistrate Judge Hay's order releasing defendant under the Bail Reform Act of 1984 subject to a number of restrictive conditions. For the reasons set forth below, the Order of Release (Doc. No. 11) will be affirmed with the following modifications: (1) defendant shall at all times be in the presence of an adult who is familiar with the allegations giving rise to defendant's indictment on the instance offense and has taken an oath to uphold the Order of Release, (2) defendant is restricted to his parent's home except for pre-approved travel to and in Pittsburgh by automobile for consultation with his attorney, medical consultation and treatment, pre-arranged visits with his wife and children as reflected in paragraph 7(v) of the Order of Release, medical consultation and treatment with Dr. Fracher in Charlottesville, Virginia and matters of a like nature that have been pre-approved by his supervising pretrial officer - and (3) defendant shall participate in mental health treatment as directed by pretrial services, which shall include compliance with the treatment plan developed by Dr. Coufal after examination and any referral consultation he deems necessary.
Roger Wesley Farris II ("defendant") was arrested on March 5, 2008, and charged by criminal complaint with a single count of using an instrument of interstate commerce to persuade, induce, entice, or coerce a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422(b). Defendant's arrest stems from an undercover operation in which he arranged to have sex with a 10 year old minor female. Defendant was arraigned on the charge and a detention hearing was held on March 7 and 8, 2008, before the Honorable Magistrate Judge Amy Reynolds Hay. On March 11, 2008, Magistrate Judge Hay entered an order releasing defendant under a number of conditions, which include: executing a $50,000 unsecured bond; living with his parents in Virginia and traveling to Pennsylvania with an adult who knows the circumstances of the instant charge and the conditions of release; no contact with children including his own without the presence of an adult who knows the circumstances of the instant charge and the conditions of the release; mental health counseling once a week as directed by pretrial services to begin immediately; no possession of a firearm, destructive devise or other dangerous weapon; refraining from excessive use of alcohol; no possession or use of controlled substances unless prescribed by a licensed medical practitioner; restriction to his parents' place of residence except for employment, education, religious services, medical, substance abuse or mental health treatment, attorney visits, court appearances, court-ordered obligations, or other activities as pre-approved by the pretrial services office or supervising officer; reporting any contact with law enforcement; visitation with defendant's children must be prearranged with his wife to ensure suitability of time and place and supervision; consent to the installation of monitoring equipment to all computer and electronic communication devices, consent to the periodic inspection of such equipment, providing the Probation Office with accurate information concerning any computer system or other electronic communication or storage devices, and abiding by all rules of the Computer Restriction and Monitoring Program. Order Setting Conditions of Release (Doc. No. 11) at 1-4.
The Federal Bureau of Investigation ("FBI") received information indicating defendant had expressed an interest in arranging a sexual encounter with a "grade school" aged girl. On March 4, 2008, defendant contacted an undercover agent by cellular telephone who was posing as the uncle of a ten year old female child residing in West Virginia. Defendant sought to ascertain whether the "uncle" would provide access to the child for the purpose of engaging in sexual acts. Defendant expressed his desire to have the child perform fellatio on him and to engage in unprotected intercourse.
During the course of the conversation defendant asked about the child's physical appearance, and was told she was tall for her age, skinny, long brown hair, small breasted, and no pubic hair. Defendant asked whether the child was menstruating and was told she was not.
He asked whether the child had ever done anything like this and was told the uncle was the only one who had experience with her. Defendant asked whether she would keep quiet about the encounter and not tell her mother and was told that in the uncle's experience she had kept it between them. Defendant sought assurance that the child really was only ten years old, and indicated he would be able to tell if she were older.
As part of the plan defendant agreed to rent a motel room for the encounter. Defendant initially proposed $300 to $400 for the encounter, but subsequently agreed to pay $700, plus an additional $50 for the cost of gas in transporting the child to Pittsburgh. He stated that if the child turned out to be as described and was good, then he could make the uncle rich by keeping the arrangement going for quite a while. At the end of the March 4, 2008, conversation defendant asked if the uncle had the child at that time. Defendant was told no, the uncle only had the child three days a week, Mondays, Wednesdays and Fridays. Defendant said: "okay, well I'll call you back in a couple of days."
The undercover agent called defendant on March 5, 2008. He told defendant he would be getting the child around 3 o'clock when she got out of school and could transport her to Pittsburgh after he gave her a bath. Defendant said he could give her a bath when they got to the hotel room. He sough assurances that he would be left alone with the child for some period of time. Defendant asked the "uncle" to stop at Wal-Mart and buy a Hanna-Montana item so defendant could give it to the child as a gift after they arrived.
Defendant rented room 510 of the Quality Inn, University Center, 3401 Boulevard of the Allies, Pittsburgh, Pennsylvania, and stowed away in a drawer $760 he had withdrawn from an ATM machine. Defendant called the "uncle" and told him he had rented the room and wanted the child transported to Pittsburgh as soon as possible so he could have sex with her.
Defendant made additional calls checking on the progress of the "uncle" and child. During these calls defendant sought assurances that the uncle was not a "cop" and at one point indicated he was getting cold feet and expressed his concern that if they were to get caught the two could get "hung up" for going through with the plan. At one point the "uncle" said "well, I'm already here ... I'm really close." Defendant stated that "if we do this or if we don't do this, I'll still give you the money." The two then agreed to "still get together and talk about this."
Surveillance was established in the parking lot of the Quality Inn. At approximately 4:45 p.m., defendant was advised that the two were just minutes away. Defendant directed the uncle to pull in the parking lot and he would walk by while maintaining cell phone contact so he could look at the child. The two would not acknowledge each other, but would thereafter meet in the hotel room to exchange the cash.
Minutes later defendant was observed in the parking lot while talking on the phone with the undercover agent. The agent had gone to the fifth floor of the hotel. Defendant insisted on gaining a description of the vehicle and eventually was told it was a Ford F-150. Defendant indicated he did not see it in the parking lot and was instructed to stay away from the vehicle without the "uncle" being there. Defendant said he just wanted to see the child "before we do anything." Defendant eventually located the truck and saw a female agent who was sitting in the truck. Believing the child to be alone in the vehicle, defendant said "I see her - I'm just going to waive to her," walked over to the truck, rapped on the passenger side window, and reached for the door handle. He was arrested. Thereafter, he claimed he was not going to go through with the planned encounter.
As part of the proceeding below, the magistrate judge, with the consent of both parties, consulted with two psychologists: Dr. King, regarding defendant's risk of danger to himself; and Dr. Coufal, regarding the nature of treatment that potentially was available should defendant be released on conditions. At the end of the proceeding she concluded that defendant had overcome the presumption and through a combination of conditions there was a reasonable assurance that defendant's release would not pose a danger to the community.
The government insists in its appeal that defendant has not overcome the presumption, is a danger to the community, and the myriad of conditions imposed do not sufficiently eliminate that danger. It notes that defendant's conduct was planned and carried out over the course of two days approximately seven weeks after it first became known that he had a desire to have sex with a child, which negates any notion that the offense was a mere momentary lapse. It further argues that defendant has demonstrated his willingness to take action on his desires, thus making the danger very real, and three out of the four pertinent factors to be considered weigh in favor of detention. In addition, similarly charged defendants have been detained in this district. Defendant maintains that the record contains sufficient evidence demonstrating that the combination of conditions under which he is to be released provides a reasonable assurance that he will not pose a danger to the community.
Argument was held before this member of the court on the government's appeal. The order scheduling that proceeding indicated "either party may call the consulted physicians to testify should they desire to do so." The government did not present testimony from either of the psychologists consulted by the magistrate, but instead presented testimony from Special Agent Clemente ("SA Clemente"), an FBI agent working in a supervisory capacity at the National Center for the Analysis of Violent Crimes and lawyer who has considerable law enforcement experience in the identification, classification and apprehension of sex offenders. SA Clemente also is a forensic psychologist and works regularly in the Behavioral Analysis Unit ("BAU") of the Center. The BAU is staffed by supervisory special agents with considerable law enforcement experience and operates as a "think tank" seeking to develop a specified field of knowledge involving violent and sexual crime. The development of this knowledge and the analyses of various studies are undertaken to assist law enforcement. SA Clemente had no first-hand interaction with defendant and his testimony was based entirely on his brief review of the case and discussion with the case agent prior to the hearing.
SA Clemente testified that under the approach employed by the BAU sexual offenders are classified on a "spectrum" ranging from a situational offender, that is one who does not have a particular attraction to children and commits the offense when a situational opportunity presents itself, to the "preferential offender," that is one who has a definite sexual attraction to children and commits the offense based on a long-term and persistent fixation on gratification of such sexual desires.*fn1 From his perspective the risk of recidivism increases as one moves closer to the characteristics of a classic preferential offender and deceases as the offender's specific traits move closer to a situational offender. The reasoning for this assessment is that situational behavior can be controlled by control of the environment where as preferential behavior suggests the likelihood of prolific victimization, which cannot be controlled by the environment (short of incarceration), with those who prey on adolescent males being the most likely to repeat and those who prey on females outside the family presenting the next highest level of risk. The specific characteristics of the target victim also factor into the analysis, because younger victims under the age of "sexualization" are more vulnerable and have less awareness of the harm being inflicted. And from SA Clemente's perspective the best predictor of future behavior is an individual's "pattern of past behavior."
SA Clemente indicated the following aspects of the record as he understood them signaled increased risk from defendant's release: defendant had at some point described his sexual desire as a feeling of obsession, which was indicative of a deep-seated and long-term preference for sex with young females and suggested that he had fantasized about children over a long period of time; defendant's being conflicted about being caught demonstrated a willingness to risk severe consequences to achieve his sexual desires; defendant's doubling of the money involved similarly demonstrated the importance of attaining his goal; and defendant's request to have a gift to give the child was indicative of "grooming," behavior through which the offender ingratiates himself to the child. And from SA Clemente's perspective electronic monitoring was ...