McLaughlin's order of detention

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

MIDLAND/ODESSA DIVISION

UNITED STATES OF AMERICA

v. 

RICHARD ELLSWORTH MCLAUGHLIN

Defendant

Cause No. Mo-08-M-197 

ORDER OF DETENTION PENDING TRIAL

AND FINDING OF PROBABLE CAUSE

(danger to community)

The Government moved to detain the Defendant on the basis of Title 18, U.S.C. § 3142 (f). In accordance with the Bail Reform Act, 18, U.S.C. § 3142 (f), a detention hearing has been held. I conclude that detention of the Defendant is required pending trial in this case for the following reason (s):

PROBABLE CAUSE FINDING

The Defendant stands charged by complaint with a violation of Title 18 U.S.C. § 2252 (a)(4). Under the provisions of Rule 5.1, Fed.R.Crim.P., it appears there is probable cause to believe that an offense has been committed and that the Defendant committed it as alleged. Therefore the Defendant shall be held to answer the charge in District Court.

DETENTION ORDER

The Court finds there is no condition or combination of conditions which would reasonably assure the safety of the community and any other person, taking into account all the available information presented to the Court. Therefore, the Defendant is detained without conditions of release. There is clear and convincing evidence that the Defendant is a danger to the community, however, there is not a preponderance of evidence which indicates that the Defendant is a flight risk.

PRESUMPTION OF DETENTION UNDER TITLE 18 U.S.C. § 3142(e)

This is a case in which there is a presumption under the provisions of Title 18 U.S.C. § 3142(e). The presumption provides the Defendant is a risk of nonappearance and a danger to the community. The Court finds that the risk of nonappearance presumption is overcome. The presumption as to danger to the community is not overcome.

FINDINGS RELATED TO DETENTION

1) The evidence against this Defendant is substantial.

2) The Defendant's criminal history is confusing. A national computer database indicates the Defendant was charged and convicted of the commission of a lewd act upon a child under the age 14 in 1971 at age 24. He was sentenced to the Department of Corrections, allegedly served 1 year in prison to be followed by a 3 year term of probation. However, the South Carolina Department of Probation, Parole and Pardons indicates that the Defendant was convicted of an offense of contributing to the delinquency of a minor and was later pardoned. It is unclear if these are two separate charges in which one was pardoned and the other was not or if somehow the commission of a lewd act upon a child under 14 was recharged as a lesser included offense. The Defendant was discharged from the military under an "undesirable discharge" status at that time. Since the Court is unclear of the nature of the actual conviction and whether a pardon occurred on the original charge in Beaufort County, South Carolina and this event occurred over 30 years ago, the Court will not place any great weight on the history of the event. The Court simply notes that the Defendant apparently had an inclination toward acting out upon conduct towards minors as early as 1971. No further conclusion is drawn by the undersigned.

3) The testimony and evidence in this case revealed a series of rather unusual and bizarre events involving the Defendant, not all of which can be concluded as necessarily in violation of the law. For example, the Defendant was found at his office during a burglary investigation by the Kermit Police Department. He was apparently sitting at his desk in front of a computer personal gratifying himself sexually. There is no direct evidence to indicate that he was watching child pornography at the time. However, the nature of such an embarrassing and risky type of conduct at an office would indicate the Defendant is willing to take a substantial risk to act out upon his pursuit of sexual gratifications. There was another incident in which a young man was described as running from the driveway at the Defendant's house and the Defendant was found in the driveway in his undershorts. Again, there is no obvious legal violation occurring, but the conduct does cause one to be concerned that he is once again acting upon the pursuit of his sexual gratification. This event allegedly occurred within the last 5 years.

4) There is clear evidence the Defendant has been observed within the past year looking at child pornography. Downloaded child pornography related to young males was found on CD rom's in the Defendant's possession. Additionally, older slides from the 1970's were found with photographs of under-aged males involved in sexual activity. All of this conduct simply leads to an indication this Defendant has been in a long term pursuit of sexual gratification directed toward underage males for many years. The Court cannot assume the risk to allow a defendant of this nature to be present in the community. The Defendant resides with his three grandchildren, two of which are boys. Although all of the evidence from search warrants was not offered at the time of the detention hearing, there are three search warrants related to the case that are public documents. The Court did not consider the information contained therein for the purposes of detention.

5) The Defendant's criminal history is attached to this Order and incorporated herein by referenced.

 6) Based on the Defendant's criminal history, the nature of the offense(s) and the findings listed above, the Court finds that no conditions of release can be established to adequately protect the safety of the community. Therefore, the Defendant is DETAINED.

DIRECTIONS REGARDING DETENTION

In light of the findings and reasons set forth above, it is ORDERED that the Defendant:

1) Be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal during the time he awaits trial;

2) The Defendant be afforded opportunity for private consultation with his counsel during this period in detention;

3) That the facility where the Defendant will be placed shall make the Defendant available to the United States Marshal's Service for any appearance in connection with a Court proceeding in this matter; and,

4) In the event an appeal of this detention order, the Pretrial Services' Report shall be sealed and made part of the record in this cause.

It is so ORDERED

Signed this 14th day of August, 2008.

                                                       L. STUART PLATT

                                                       United States Magistrate Judge