Case: 5:19-mj-05018-MAS Doc #: 11 Filed: 02/01/19 Page: 1 of 9 - Page ID#: 23

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON

UNITED STATES OF AMERICA, )

)
Plaintiff, )
) No. 5:19-MJ-5018-MAS
v. )
)
MICKY RIFE, )
)
Defendant. )

DETENTION ORDER

The current matter concerns a Criminal Complaint charging Micky Rife (“Rife”) with

illicit sexual conduct in a foreign place with a minor under 18 U.S.C. § 2423(c) and § 2423(f).

[DE 1]. The Court conducted a detention hearing in this matter on January 31, 2019. [See DE

10]. The Court previously found that the United States had a right to the hearing under 18

U.S.C. § 3142(f)(2)(A) & (B). [See DE 6]. At the hearing, the United States sought Rife’s

detention based on risk of nonappearance and danger. The Court afforded Rife and the United

States all procedural rights provided by the Bail Reform Act (“BRA”). Per FRAP Rule 9(a), for

the reasons described in this Order, the BRA requires Rife’s detention.

For the charge, the BRA, 18 U.S.C. § 3141, et seq., imposes a presumption of detention

as to both nonappearance and danger. The Court assesses the presumption under the BRA and

United States v. Stone, 608 F.3d 939, 945-46 (6th Cir. 2010). See also United States v.

Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (imposing burden of production on defendant to

produce “some evidence that he will not flee or endanger the community if released” in face of

presumption); United States v. Hernandez, No. 1:02-CR-006, 2002 WL 1377911, at *2 (E.D.

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Tenn. Feb. 27, 2002) (crafting production burden as “the burden of producing probative, credible

evidence to rebut the presumption and support his [defendant=s] contention that he will appear . .

. and he does not pose a danger”). This is only a production burden, and it is “not heavy.” See

Stone, 608 F.3d at 945 (noting duty to “introduce at least some evidence”). An unrebutted

presumption requires detention. A rebutted presumption remains a pro-detention statutory factor.

See id.

Where the presumption is met, the burden then shifts back to the United States.

Detention, based on danger, must rest on facts supported by clear and convincing evidence. 18

U.S.C. § 3142(f). A flight-based (or, more accurately, nonappearance-based) detention decision

must rest on facts supported by a preponderance of the evidence. United States v. Patriarca, 948

F.2d 789, 793 (1st Cir. 1991); United States v. Curry, No. 6:06-82-DCR, 2006 WL 2037406, at

*6 (E.D. Ky. Jul. 18, 2006). The analyses are distinct, and conditions that could adequately

address flight will not necessarily mitigate danger to a sufficient degree. See United States v.

Mercedes, 254 F.3d 433, 436-37 (2d Cir. 2001). Further, almost any conditional release

ultimately depends on a court’s assessment of a defendant’s good faith intentions and predicted

compliance with conditions imposed. See United States v. Tortora, 922 F.2d 880, 887 (1st Cir.

1990) (evaluating predicted good faith compliance as critical release component). In the end,

any detention decision ultimately turns on the efficacy of potential conditions, which in turn

hinges substantially on predicted compliance by a defendant. United States v. Hir, 517 F.3d

1081, 1092 (9th Cir. 2008) (noting “critical flaw” in set of proposed, strict release conditions: “In

order to be effective, they depend on [the defendant’s] good faith compliance.”); id. at 1093 n.13

(stating that any set of conditions except a “‘replica detention facilit[y]’” necessarily would

“hinge on [the defendant’s] good faith compliance”).

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ANALYSIS

The parties’ presentations at the detention hearing were wide ranging, and each took

advantage of the inapplicability of the Rules of Evidence to a detention hearing. As the Court

indicated at the hearing, it accepts for consideration all information because of the hearing’s

informality; the quality and nature of proof impacts probativeness, however. Just because

information is part of a hearing does not make all hearing information equally persuasive to the

Court.

Section 3142(g) factors drive the overall analysis. 1 The Court focuses initially on

whether Rife was able to meet his presumption burden. If he does, the Court then focuses on

whether the United States can prove requirements for detention. The Court finds, based on a full

analysis of the record and the mandatory factors under the BRA, that the detention of Rife is

warranted.

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(g) Factors to be considered. --The judicial officer shall, in determining whether there are conditions of
release that will reasonably assure the appearance of the person as required and the safety of any other
person and the community, take into account the available information concerning--
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of
violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a
controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including--
(A) the person's character, physical and mental condition, family ties, employment, financial resources,
length of residence in the community, community ties, past conduct, history relating to drug or alcohol
abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other
release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or
local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the
person's release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or
(c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the
Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or
offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of
property that, because of its source, will not reasonably assure the appearance of the person as required. 18
U.S.C.A. § 3142(g) (West).
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A. RISK OF FLIGHT

Under the relevant standards discussed above, the Court finds that Rife offered sufficient,

credible evidence to rebut the presumption as to risk of flight. Rife’s rebuttal case consisted of

the sworn testimony of two witnesses, content from the bond report and counsel argument and

proffer. Although Rife has lived in Cambodia ofr the past several years, Rife put forth

significant evidence that he lacks any financial means by which to travel, much less travel

internationally. Moreover, Rife’s valid passport was seized by law enforcement at the time of

his arrest. Rife’s mother, with whom Rife is currently residing, testified that she was more than

willing to cooperate with any conditions the Court may place on Rife upon his release, including

home detention, electronic monitoring and other means to track and monitor Rife.

With Rife having met his presumption, the Court turns to the United States. The United

States established Rife’s numerous contacts abroad. Although raised in Kentucky, Rife has had

little time within the United States or the Commonwealth for roughly ten years. He claims to

have lived in Australia from 2010 to 2011, working as a diesel mechanic. After that, he was

employed as a teacher in Cambodia, where his adoptive daughter lives currently. He also

traveled to Vietnam and Thailand during his stay in Cambodia. Such proclivity for international

travel has been found in other cases to be indicators of a defendant being a flight risk. See

United States v. El-Hage, 213 F.3d 74, 80 (2d Cir. 2000) (affirming district court determination

that defendant was “quite capable of flight” where, inter alia, he had “extensive history of travel

and residence in other countries.”).

The United States further established that Rife’s contacts with his home country and/or

the Commonwealth are minimal. Although most of his biological family resides in Kentucky,

the only family Rife claims to have “regular contact” with is his mother. While Rife does own

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real estate in Magoffin County, he has not lived on that property to the Court’s knowledge.

Thus, much of Rife’s familial, residential, community, employment, and financial ties are still

with a foreign country, which would favor a finding of Rife as a flight risk. See United States v.

Fata, No. CRIM. 13-30484, 2013 WL 4084765, at *6 (E.D. Mich. Aug. 13, 2013) (finding

pretrial release unwarranted where defendant had significant family ties to Lebanon, despite

defendant being a U.S. citizen for years).

However, neighboring courts have found defendants with substantial foreign ties were

not per se flight risks. See United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990)

(“[w]hen assessing an alien defendant's ties to the United States, factors to be considered include

how long the defendant has resided in this country, whether defendant has been employed in the

United States, whether defendant owns any property in this country, and whether defendant has

any relatives who are United States residents or citizens.”); see also United States v. Motamedi,

767 F.2d 1403 (9th Cir. 1985) (stating that the fact “defendant is an alien may be taken into

account, but alienage does not by itself ‘tip the balance either for or against detention’”); see also

United States v. Garcia, 801 F. Supp. 258, 260 (S.D. Iowa 1992) (government failed to establish

risk of flight by preponderance of evidence, for purposes of detention in lieu of bail, based on

fact that defendant was an alien). Ties outside of the United States are not, of themselves,

sufficient to establish a defendant as a flight risk. There must also be an absence of ties to the

United States. Rife is a citizen of the United States and the Commonwealth. While Rife has

spent a large part of his life abroad, he still possesses the minimal contacts in the United States to

prevent his foreign ties from commandeering the entire analysis towards detention.

Ultimately, with the numerous allegations against him in Cambodia, along with his lack

of passport, and his mother’s willingness to adhere to the Court’s conditions, it seems Rife would

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likely be dissuaded from, and unlikely to even be capable, of fleeing. The Court could create

conditions that would prevent Rife’s risk of flight. In short, the United States failed to establish

by the preponderance of evidence that Rife was a flight risk.

B. RISK OF DANGER

As with risk of flight, Rife presented several arguments seeking to overcome his

presumption that he was a danger to the community. Rife, through argument of counsel and

examination of Agent Michael Romagnoli, sought to contest the underlying charges and offered

several conditions of release that might assuage any concerns from the Court (i.e., removal of

any access to the internet, assurances that he would not reside near any schools or daycare

facilities, etc.). Thus, Rife met his initial presumption.

Upon examination of the relevant factors under the BRA, however, the United States

proved by clear and convincing evidence that Rife posed a danger to another person or to the

community. The first factor to consider is the “nature and circumstances of the offense charged,

including whether the offense is a crime of violence […] or involves a minor victim.” 18 U.S.C.

§ 3142(g)(1). Rife’s alleged crime involves a minor and is, therefore, a crime of violence.

United States v. Champion, 248 F.3d 502, 506 (6th Cir. 2001) (recognizing that violations of

federal statutes designed to protect minors constitute a crime of violence); United States v.

Campbell, 256 F.3d 381, 397-8 (6th Cir. 2001); see also United States v. Martinez, 250 F.3d

1101, 1105 (7th Cir. 2001) (“[e]ngaging in sexual intercourse with a thirteen-year-old girl was a

‘crime of violence’”); United States v. Abad, 350 F.3d 793, 798-99 (8th Cir. 2003) (recognizing

that a violation of 18 U.S.C. § 2423 constitutes a crime of violence). It is clear the first §

3142(g) factor heavily favors a finding of detention.

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The second factor concerns the “weight of the evidence against the person.” 18 U.S.C. §

3142(g)(2). In the initial complaint, there were multiple corroborating witnesses for the alleged

crimes. [See DE 1]. Rife’s ex-girlfriend alleged that he assaulted an approximately 5-year-old

student. [Id. at Page ID # 4]. Rife’s ex-girlfriend also feared Rife was possibly abusing their 3-

year-old adopted child, although his current girlfriend and current custodian of the child

disagreed. [Id.]. As early as 2013, the FBI was made aware of Rife’s “unusual behavior with

students,” and on several occasions investigated these allegations. [Id.]. The vice-principal of

the school where Rife was employed provided a written warning memorandum that had been

given to Rife concerning these allegations, and stated that she knew of two victims molested by

Rife. [Id. at Page ID # 5]. The mother of an alleged victim claimed her daughter had to see a

physician due to the inappropriate touching by Rife, with medical records to substantiate the

severity. [Id.] That victim’s sister, also a student at the school Rife was employed at,

corroborated her sister’s claims. [Id. at Page ID # 6]. She also stated that “Teacher Micky”

touched another friend of hers in a similar way, and that Rife would touch “all the girls at the

school” in an inappropriate manner. That friend, called Minor Victim 2 in the Complaint, also

alleged sexual contact with Rife when she was roughly 7 or 8 years old “many times.” [Id. at

Page ID # 7]. While Rife was able to partially attack the reliability of certain allegations during

the hearing, such a vast amount of witnesses alongside years of similar reports, at the very least,

does not favor release.

The third factor, the “history and characteristics of the person,” considers a host of issues.

18 U.S.C. § 3142(g)(3). Nothing inherently problematic or concerning exists in Rife’s past.

However, one vital point is that Rife’s lack of a criminal record does not necessarily mean he is

not a danger to the community. The Western District of Kentucky has revoked an order

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releasing a defendant pending trial when the defendant was guilty was of violating § 2432 and

had no prior criminal history. See United States v. Music, No. 107-CR-21-R, 2007 WL 2067057

(W.D. Ky. July 16, 2007). Neighboring circuits have held similarly. See Abad, 350 F.3d at 798

(noting even though the defendant had no prior criminal history, “the nature of the crime

charged-sexual activity with a minor-weighs heavily against release.”); U.S. v. Mercedes, 254

F.3d 433, 438 (2d Cir.2001) (reversing the decision of the district court to release the defendant

even without a prior criminal record). Therefore, the third factor adds little to the analysis.

The final factor to dissect is “the nature and seriousness of the danger to any person or

the community that would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4). As

discussed above, Rife suggested certain conditions to, at minimum, mitigate some level of

danger to other’s or the community if Rife were released. Nevertheless, while the allegations

remain just that, allegations, the sheer volume of accusations is worrying. These allegations are

presented by multiple witnesses, sharing corroborating stories. Even more concerning, the

accusations are not single incidents, but a pattern of incidents spanning years of conduct. Even

in cases where there is only one known victim, courts in the past have found conditions limiting

contact between a defendant and said victim cannot ensure safety, as a defendant could “contact

other minors.” See Music, 2007 WL 2067057 at *5; see also Abad, 350 F.3d at 799 (noting that

the defendant, who may have had inappropriate contact with minors prior to the victim, was a

danger to the community despite the restrictions imposed by the district court). Here, it seems

the alleged behavior would be hard to contain no matter the conditions the Court would impose.

Hence, this factor, too, cuts towards a finding of pre-trial detention.

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Accordingly, based upon an examination of the relevant factors discussed above, the

Court finds that the United States has established by clear and convincing evidence that Rife is a

danger to another or to the community.

CONCLUSION

For the stated reasons, the Court finds that the United States failed in proving that Rife

was an irremediable flight risk based on facts supported by a preponderance of the evidence, but

succeeded in showing Rife was an irremediable danger risk based on facts supported by clear

and convincing evidence, which were the requirement for detention. As such, the Bail Reform

Act mandates detention. The Court has assessed the record, contemplated the risks, evaluated

conditions, and determined that there exist no conditions that will reasonably assure that Rife

will appear in Court. Accordingly, the Court GRANTS the United States’s oral motion for

detention, and DETAINS Defendant Micky Rife.

The parties may appeal this Order under the terms of 18 U.S.C. § 3145(a).

Entered this the 1st day of February, 2019.