Case: 3:19-cr-00010-GFVT-EBA Doc #: 19 Filed: 02/13/19 Page: 1 of 7 - Page ID#: 57

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT FRANKFORT

ELECTRONICALLY FILED

CRIMINAL ACTION NO. 3:19-10-GFVT-MAS

UNITED STATES OF AMERICA )

)
PLAINTIFF )
) MOTION FOR REVOCATION OF
v. ) DETENTION ORDER
)
MICKY RIFE )
)
DEFENDANT )

Comes the Defendant, Micky Rife, by counsel, and moves the Court to revoke the

Detention Order entered by the Magistrate Judge on February 1, 2019 [DE 23], pursuant

to 18 U.S.C. § 3145(b). As grounds for the motion, Mr. Rife states as follows:

On January 31, 2019, United States Magistrate Judge Matthew Stinnett held a

detention hearing for Mr. Rife. On February 1, 2019, Magistrate Judge Stinnett

determined that Mr. Rife should be detained pending trial pursuant to the Bail Reform Act

of 1984, 18 U.S.C. §§ 3141, et seq. Mr. Rife moves the District Court to revoke the

detention order, and enter an order allowing pretrial release upon appropriate conditions.

At the time of the detention hearing on January 31, 2019, a Criminal Complaint

was filed against Mr. Rife alleging he violated 18 U.S.C. § 2423(c), traveling in foreign

commerce to Cambodia, a foreign country, and engaging in or attempting to engage in

illicit sexual conduct with another person under the age of 18 years. DE 1. A grand jury

later returned an Indictment against Mr. Rife on February 7, 2019, alleging in two Counts

that Mr. Rife violated 18 U.S.C. §§ 2423(c) and (e) with respect to two alleged victims.
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DE 12. While charged in two counts, the nature of the allegations is unchanged from the

Criminal Complaint.

At the detention hearing, the Government sought detention on the basis of risk of

nonappearance and danger. Ultimately, the Magistrate Judge properly decided, based

on the facts and reasoning recited in its Order, that the Government failed to establish

that Mr. Rife was a flight risk. Mr. Rife does not challenge this determination. The

Magistrate Judge decided, however, that releasing Mr. Rife posed a danger to the

community. See DE 11, Page ID # 28.

Mr. Rife concedes that under 18 U.S.C. § 3142(e)(3), it “shall be presumed that no

condition or combination of conditions will reasonably assure . . . the safety of the

community” following Magistrate Judge Stinnett’s finding of probable cause that he

violated 18 U.S.C. § 2423. However, the presumption is rebuttable and was in fact

rebutted by Mr. Rife at the detention hearing held on January 31. See DE 11, Page ID #

28 (“Rife met his initial presumption [on risk of danger]”).

Mr. Rife disagrees with the Magistrate Judge’s determination that the Government

then met its burden by clear and convincing evidence that he posed a danger to another

person or the community. At the hearing, Mr. Rife called his mother, Robin Hays, to testify

regarding her willingness to abide by whatever conditions imposed by the Court to

address concerns that he might pose a danger to others and the community. Additionally,

he cross-examined through counsel Special Agent Romagnoli regarding detention

issues.

Under 18 U.S.C. § 3142(g), the Magistrate Judge was required to “determin[e]

whether there are conditions of release that will reasonably assure . . . the safety of any
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other person and the community, tak[ing] into account the available information

concerning” the nature and circumstances of the offense, the weight of the evidence

against Mr. Rife, his history and characteristics, and the nature and seriousness of the

danger to any person or the community posed by his release. The Magistrate Judge’s

Detention Order initially stated that the conditions proposed rebutted the presumption but

the Court then did not consider how these conditions would fare against the risk of danger

or the § 3142(g) factors. Section 3142(f)(2)(B) requires a finding that “no condition or

combination of conditions will reasonably assure the safety of any other person and the

community . . . by clear and convincing evidence.”

Regarding the first factor under § 3142(g), the circumstances of the alleged crime

support pretrial release in light of the location of the alleged crimes and victims. Through

Ms. Hays’s testimony and by proffer, Mr. Rife established that he could live with his

mother and stepfather in a home where all access to the internet and to other people

could be restricted. He agreed that electronic monitoring could be used to restrict his

movements and alert authorities if he violated the bounds of his confinement. As stated

earlier in the Detention Order, Mr. Rife had neither the monetary means nor a passport in

order to effectuate travel. In other words, he would have no access to the alleged victims

or the witnesses involved in this case, who are all located in Cambodia. While the Court

will view the nature of the crime as cutting against pretrial release, the circumstances of

that alleged crime show that his confinement to his mother’s home in Kentucky presents

no danger to the alleged victims and witnesses. The Government failed to establish by

clear and convincing proof that the circumstances of the alleged crimes bore any similarity

to his proposed confinement in his mother’s home and without access to others.
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The Magistrate Judge found the second factor under § 3142(g) did not favor

release. The “weight of the evidence” factor concerns the defendant’s dangerousness,

not guilt. United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010). The question is how

convincing are the Government’s arguments of dangerousness. United States v.

Villegas, No. 3:11-CR-28, 2011 WL 1135018, at *8 (E.D. Tenn. Mar. 25, 2011). The

Magistrate Judge did not specifically state whether the evidence recited in the Detention

Order was intended to support Mr. Rife’s dangerousness or guilt, but suggests he

considered the “weight” factor for guilt by referring to the “alleged crimes” for which the

Court believed “there were multiple corroborating witnesses.” DE 11, Page ID # 29. At

the detention hearing, witness statements were recounted by Special Agent Romagnoli

through multiple layers of hearsay, and involving cultural differences, linguistic barriers

and minor children. SA Romagnoli did not investigate the crimes in Cambodia or speak

to the alleged victims and witnesses. No witness statements were provided to support

his testimony, further undermining his credibility. He agreed that one of the alleged

victims altered her story following repeated interviews by law enforcement. Where the

Magistrate Judge held that the allegations supported detention due to “years of similar

reports,” the duration undermines the weight of the evidence given the fallibility of memory

and the involvement of minors under age 12. More to the point, the claimed allegations

were limited to two years, 2013 and 2015, one allegation of which was found to be

unsubstantiated when investigated close in time. SA Romagnoli testified that one of the

alleged victims sought treatment with a medical provider with knowledge of the alleged

abuse, but there was no medical finding tying the alleged sexual abuse to her condition.

This was underscored by the Government’s unsuccessful attempt to rehabilitate SA

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Romagnoli’s testimony. SA Romagnoli further testified that his inclusion of this allegation

in the Complaint was not intended to suggest a causal connection between the allegations

and the girl’s condition. Finally, SA Romagnoli testified that there was nothing to support

any alleged abuse of Mr. Rife’s adopted daughter by him, yet that allegation continues to

persist to his detriment. The questionable weight of the evidence does not establish Mr.

Rife’s dangerousness, particularly in light of the conditions proposed. The Government

failed to meet its high burden.

The Magistrate Judge believed that the third factor added little to the analysis, but

Mr. Rife’s family ties, financial resources, community ties, criminal history, and record of

appearing under this third factor cut in favor of pretrial release. At the detention hearing

it was established that Mr. Rife’s family ties brought him to Kentucky from Cambodia. He

could have chosen to relocate anywhere, but came to Kentucky because of his family

support here and increased job prospects. Additionally, his family ties to his fiancée and

daughter brought him to Kentucky when he could no longer work in Cambodia. He sought

to financially support them from Kentucky and perhaps relocate them here. His brothers,

mother, stepfather, and father live in Kentucky. He owns land in Kentucky. He has no

significant criminal history. While there is little record evidence of his ability to appear,

Mr. Rife voluntarily appeared at Kentucky State Police offices to address a purported

driver’s license issue when requested. Plainly the third factor favors Mr. Rife, and goes

beyond the charged offense weighing against a lack of criminal history. In Stone, the

Sixth Circuit examined the order to detain several defendants, noting that while a lack of

criminal history does not preclude detention, the “history and characteristics” factor

favored those defendants without a criminal history that might support their
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dangerousness, however slightly. Stone, 608 F.3d at 950. The Magistrate Judge cites

United States v. Music, No. 107-CR-21-R, 2007 WL 2067057 (W.D. Ky. July 16, 2007) in

support of the position that Mr. Rife’s charge overrides his history and characteristics, but

the Magistrate Judge is effectively double-counting the first factor (nature of the offense)

by considering it here again against a component of the third factor. In Music, the District

Court relied upon the two authorities also noted in the Magistrate Judge’s Detention Order

here, namely United States v. Mercedes, 254 F.3d 433, 438 (2d Cir. 2001) and United

States v. Abad, 350 F.3d 793, 799 (8th Cir. 2003). Mercedes, upon which Abad relies,

involved the risk of flight, and not dangerousness, the Second Circuit noting its agreement

that “lack of criminal record weighs in favor of release” but finding Mr. Bautista, a citizen

of the Dominican Republic, a risk of flight due to the evidence against him and the

sentence he faced. Abad perhaps stretches the decision in Mercedes. Here, Mr. Rife’s

history and characteristics provide nothing to support his alleged dangerousness. This

factor weighs in his favor.

Finally, the Magistrate Judge found that the “alleged behavior would be hard to

contain no matter the conditions the Court would impose.” The Bail Reform Act requires

only that the combination of conditions “reasonably assure . . . the safety of any other

person.” 18 U.S.C. § 3142(g). Again the Magistrate Judge relies upon Abad and Music

for support, but in both of those cases, the court did not consider whether more restrictive

conditions such as those proposed here would reasonably assure the safety of others. In

Abad, the court erred in permitting the defendant, a nurse, to return to his position at a

children’s hospital where he would have access to minors. In Music, the court did not

impose restrictions against telephone or internet usage. Here, Mr. Rife agreed to home
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incarceration with monitoring and Ms. Hays agreed that she would prevent house guests

and could remove all internet devices. She could further prevent Mr. Rife from accessing

the phone if ordered. These conditions are sufficient to reasonably assure that Mr. Rife

would not endanger others.

On balance, two of the factors favor Mr. Rife, and the combination of conditions

proposed can reasonably mitigate any concerns for the remaining factors. The

Government failed to establish by clear and convincing evidence that Mr. Rife is a danger

to others or the community. He asks that he be released on appropriate conditions

pending trial.

GREEN CHESNUT & HUGHES, PLLC

Chase Tower
201 East Main Street, Suite 800
Lexington, KY 40507
Tel: (859) 475-1471
Fax: (859) 455-3332

BY: /s/ James M. Inman

JAMES M. INMAN
ATTORNEY FOR DEFENDANT,
MICKY RIFE

CERTIFICATE OF SERVICE

I hereby certify that on this day, Wednesday, February 13, 2019, I electronically

filed the foregoing with the clerk of the court by using the CM/ECF system, which will send

an electronic notice to all counsel of record in this matter.

/s/ James M. Inman

COUNSEL FOR DEFENDANT