USA v. Trombley

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Criminal Case No. 22-cr-205-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
EMERY WAYNE TROMBLEY, JR.,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO
REVIEW MAGISTRATE COURT’S ORDER OF DETENTION AND GRANT HIM
PRETRIAL RELEASE IN ACCORDANCE WITH THE BAIL REFORM ACT
Before the Court is Defendant Emery Wayne Trombley, Jr.’s Motion to Review
Magistrate Court’s Order of Detention and Grant Him Pretrial Release In Accordance
With the Bail Reform Act (“Motion”), wherein Defendant seeks reconsideration of United
States Magistrate Judge S. Kato Crews’s detention order under 18 U.S.C. § 3145(b)
and United States v. Salerno, 481 U.S. 739 (1987). (ECF No. 27.) The Government
filed a response. (ECF No. 29.) Defendant filed a reply. (ECF No. 33.) For the
following reasons, the Motion is granted insofar as it seeks de novo review of Judge
Crews’s detention order but denied insofar as it seeks pretrial release on bond.
I. LEGAL STANDARD
A district court reviews de novo a magistrate judge’s detention order. United
States v. Cisneros, 328 F.3d 610, 616 n.1 (10th Cir. 2003); 18 U.S.C. § 3145(b). A
district judge reviewing a magistrate judge’s detention order may consider the evidence
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presented during the original detention hearing and may permit the parties to submit
new evidence. Cisneros, 327 F.3d at 617. At a detention hearing, a defendant “shall be
afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who
appear at the hearing, and to present information by proffer or otherwise. The rules
concerning admissibility of evidence in criminal trials do not apply to the presentation
and consideration of information at the hearing.” 18 U.S.C. § 3142(f)(2).
II. GENERAL LAW RELEVANT TO PRETRIAL DETENTION
Under the Bail Reform Act, a defendant may be detained pending trial only if a
judicial officer finds “that no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety of any other person
and the community.” 18 U.S.C. § 3142(e); id. § 3142(b), (c). A judicial officer may
make such a finding only after holding a hearing according to the procedures specified
in § 3142(f), and the government ordinarily bears the burden of proof at that hearing.
The government must prove risk of flight by a preponderance of the evidence and it
must prove dangerousness to any other person or to the community by clear and
convincing evidence. See id. § 3142(f).
“[I]n 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,” the judicial officer must consider:
(1) The nature and circumstances of the offense charged,
including whether the offense is a crime of violence or
involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
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(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.
Id. § 3142(g). If, after the hearing and consideration of the above factors, a judicial
officer orders that a defendant be detained, the order must “include written findings of
fact and a written statement of the reasons for the detention.” Id. § 3142(i)(1); see also
Fed. R. App. P. 9(a)(1) (“The district court must state in writing, or orally on the record,
the reasons for an order regarding the release or detention of a defendant in a criminal
case.”).
The analysis is different in part for a defendant charged with particular offenses,
such as an offense involving a minor victim. See id. § 3142(e)(3). In such cases, if the
Court finds probable cause to believe that the defendant committed the offense, then
there is a rebuttable presumption that “no condition or combination of conditions will
reasonably assure the appearance of the person as required and the safety of the
community”. Id.
III. PROCEDURAL HISTORY
On June 21, 2022, an Indictment was filed, charging Defendant with one count of
Coercion and Enticement in violation of 18 U.S.C. § 2422(b); one count of Production of
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Child Pornography in violation of 18 U.S.C. § 2251(a) and (e); one count of Travel with
Intent to Engage in Illicit Sexual Conduct with a Minor in violation of 18 U.S.C. § 2423(b)
and (f); and one count of Transportation of a Minor with Intent to Engage in Criminal
Sexual Activity in violation of 18 U.S.C. § 2423(a). (ECF No. 1.)
Defendant made his initial appearance in the Western District of Kentucky before
United States Magistrate Judge H. Brent Brennenstuhl on June 20, 2022, at which time
he requested that his detention hearing be conducted in the charging district. (ECF No.
6.) Defendant was then transported to the District of Colorado where he made his initial
appearance before Judge Crews on July 26, 2022, at which time the Government
moved for Defendant’s detention. (ECF No. 9.)
Judge Crews held a detention hearing on July 29, 2022. (ECF No. 13.) Both
sides made proffers during the hearing. (ECF No. 29-1 (transcript of detention
hearing).) The Government proffered evidence, including a recitation of the allegations
that Defendant engaged in online conversations with a 13-year-old minor (hereinafter
referred to as the “minor”) for approximately 14 months, during which he enticed her to
produce child pornography and after which he traveled to Kentucky to take the minor
and bring her back to Colorado where he engaged in sexual conduct with her, while
taking steps to hide his actions and evade authorities once discovered. (Id. at 13–25.)
To rebut the presumption of detention, Defendant offered rebuttal evidence, including
his family support, mental health condition of autism, conditions in jail, and lack of
criminal history. (Id. at 5–13, 26–29.)
That same day, Judge Crews issued an Order of Detention, finding that while
Defendant presented sufficient credible evidence to rebut the presumption based on his
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lack of criminal history, his strong family ties within this District, and the duration of time
in which he has lived within Colorado, the presumption of detention had nonetheless not
been overcome. (Id. at 31.) Judge Crews specifically stated that he had considered the
relevant factors, Defendant’s lack of stable employment, and the nature and
circumstances of the alleged offense in this case. (Id. at 32.) He observed that the
circumstances included an “elaborate plan that required multiple steps to execute,”
which Defendant planned, and “deception along the way when stopped by law
enforcement in Kansas with a cover story prepared.” (Id.) He recounted that Defendant
traveled back to Colorado, and when informed law enforcement was at his house, he
fled to Texas. (Id.)
Further, Judge Crews noted that when the minor victim in this case was kicked
out of the house by Defendant’s parents, Defendant was “undeterred and put yet
another plan in place to smuggle this minor in and out of his home, all of this being
conducted while apparently knowing the unlawfulness of his actions and his conduct
with a minor.” (Id. at 32–33.) Additionally, Judge Crews’s conclusion was supported by
the fact that although this case involved only one child, as Defendant’s counsel argued
at the hearing, the nature of the conduct in this case “implicates a community-wide
concern and a community-wide danger . . . which is exemplified by the community-wide
search in Kentucky . . . searching for this minor, based on the suicide note that was left,
which was also derived from the plan that this Defendant put in place.” (Id. at 33.)
For these reasons, Judge Crews concluded that the Government showed that no
condition or combination of conditions of release would reasonably assure the safety of
the community or Defendant’s presence in court and ordered Defendant detained. (Id.)
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IV. ANALYSIS
The Court has reviewed the entire transcript of the detention hearing and finds
that it need not conduct a hearing on the Motion. See United States v. Renander, 431
F. Supp. 3d 1240, 1242 (D. Colo. 2020) (determination of whether to hold an evidentiary
hearing is a matter of discretion for the district court) (citation omitted). Like Judge
Crews, the Court finds that the rebuttable presumption that no condition or combination
of conditions will reasonably assure the appearance of the Defendant as required and
the safety of the community applies, because there is probable cause established by
way of the indictment to believe that Defendant has committed an offense that is
enumerated under § 3142(e)(3). The Court also notes that Pretrial Services
recommended detention in this case. (ECF No. 29-1 at 32.)
In the Motion, Defendant argues that the Court should release him on bond with
conditions for several reasons. (ECF No. 27 at 5.) Defendant explains that he was
diagnosed with autism at six years old, which necessitated an individualized education
plan for each of his school years. (Id. at 9.) According to Defendant, his autism and
other mental health issues make him particularly vulnerable during pretrial detention,
and he describes being assaulted and harassed in jail since being detained.1 (Id. at 9–
10.) Defendant emphasizes his family ties to Colorado. He has lived with his mother
and stepfather in Colorado for the past several years, and his father lives in Colorado.
(Id. at 11.) He states that they are both home all day, are very supportive, and have
1 The Government states that it takes allegations of violence in jails seriously, and these
incidents should be further investigated; however, these arguments are not a basis for
Defendant’s release and do not fall under the factors enumerated in § 3142 to be considered in
determining detention. (ECF No. 29 at 11.) Moreover, in his reply, Defendant states that he
was transferred to another facility after he reported the assaults and explained his mental health
issues and is now housed in a segregation unit. (ECF No. 33 at 6.)
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agreed to be Defendant’s third-party custodians and ensure that he complies with any
conditions of pretrial release. (Id.) His family has sold the car he used and removed all
electronic devices Defendant used to access the internet, including his cell phone. (Id.)
Defendant concedes that because of his autism, he does not have a strong
employment history. (Id.) He points out that he has no criminal history. (Id.)
Defendant states that while the accusations against him are serious, they indicate that if
he “poses any risk during pretrial release, it would involve the person at the center of
the charges in this case,” and he notes that he has never been accused of engaging in
any inappropriate relationship with any other person. (Id. at 12.)
Defendant argues that the foregoing facts rebut the presumption of detention and
“definitively result in conditions of pretrial release that will ensure that [he] appears in
Court when ordered and protect the community.” (Id.) He suggests that the following
conditions will assure his presence in court and the safety of the community:
(1) Mr. Trombley’s mother and stepfather will act as third-
party custodians, they are responsible for ensuring Mr.
Trombley complies with any condition of pretrial release the
Court imposes; (2) Mr. Trombley is subject to home
confinement, with exceptions for medical treatment
(including mental health treatment), meeting with his
attorney, and appearing in Court as ordered; (3) Mr.
Trombley is subject to location monitoring; (4) Mr. Trombley
is required to undergo mental health treatment; (5) Mr.
Trombley is responsible for paying the costs of that mental
health treatment[]; and (6) Mr. Trombley is prohibited from
possessing any electronic device that is capable of
connecting to the internet or accessing the internet, including
through a third party, without prior approval of the Court.
(Id. at 13.)
In response, the Government asks the Court to order the continued detention of
Defendant after a de novo review of the record. (ECF No. 29.) The Court will not
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reiterate all of the Government’s arguments here.
As an initial matter, the Court, like Judge Crews, finds that Defendant has
presented sufficient credible evidence to rebut the presumption of detention, based on
his lack of criminal history, family ties in Colorado, and the duration of time in which he
has lived in Colorado. (See ECF No. 29-1 at 31.) Nevertheless, having considered the
evidence in light of four factors required under the Bail Reform Act, for the following
reasons, the Court finds that the Government has met its burden of showing by a
preponderance of evidence that no condition or combination of conditions will
reasonably assure the Defendant's attendance as required, and has met its burden of
showing by clear and convincing evidence that no condition or combination of
conditions will reasonably assure the safety of any other person or the community.
The Court notes that it did not reiterate every item of evidence on which Judge
Crews relied in making his findings at the detention hearing in the Procedural History
section of this Order; see supra Part III. The Court has, however, explained Judge
Crews’s reasoning in great detail and, on de novo review, agrees with and adopts his
analysis. With this in mind, the Court examines below the four factors required by the
Bail Reform Act.
A. 	Nature and Circumstances of the Offense Charged
First, the Court considers the nature and circumstances of the offense charged,
including whether the offense is a crime of violence or involves a minor victim. As the
Government points out, the charges against Defendant are crimes of violence under §
3142(g)(1). (ECF No. 29 at 7.) A “crime of violence” is defined in 18 U.S.C. §
3156(a)(4)(C) as “any felony under chapter . . . 110, or 117.” Counts One, Three, and
Four of the indictment charge Defendant with crimes found in Chapter 117 of the
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Criminal Code, titled “Transportation for Illegal Sexual Activity and Related Crimes,” and
Count Two of the indictment charges the defendant with a crime found in Chapter 110
of the Criminal Code, titled “Sexual Exploitation and Other Abuse of Children.”
The offenses charged are very serious. The evidence proffered at the detention
hearing demonstrates that Defendant knew that his relationship with the minor in this
case was wrong. Specifically, the Government proffered evidence that based on some
of the first messages exchanged with the minor, Defendant knew that she was only 13
years old at the time. Nonetheless, the Government proffers that Defendant turned the
conversation to a sexual nature, asked her for explicit images of her body, and
discussed him coming to Kentucky where she lived to take her away with him. (ECF
No. 29-1 at 14–15.) Over the course of no less than 14 months, Defendant
communicated with the minor and exchanged pornographic videos and photos with her.
(Id. at 16.) The proffered evidence shows that when the minor’s mother instructed her
to stop speaking with Defendant, he and the minor found other ways to communicate,
including using the minor’s friend’s phone to sign in to Snapchat and creating a Spotify
playlist to share messages through the playlist titles. (Id. at 17.) The Court concludes
that the proffered evidence of their communications clearly establish Defendant’s
dogged persistence and undaunted determination to continue the relationship with the
minor, despite knowing it was improper and against her mother’s wishes.
Importantly, the planning process described in the Government’s proffer at the
detention hearing was deliberate. The Court understands that Defendant’s counsel
anticipates that “significant evaluations” concerning Defendant’s mental health will be
required in this case. (ECF No. 29-1 at 6.) While the Court will await results of a mental
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health evaluation before it makes any final determination of the matter, it will note for the
record here that evidence the Defendant undertook a methodical and careful course of
conduct in the planning and execution of his charged criminal conduct calls into
question the actual severity of his alleged mental health and cognitive impairments. For
instance, when Defendant was unable to procure a driver to take him to Kentucky and
back, he practiced driving in anticipation of obtaining a driver’s license. (Id. at 18.) That
Defendant was willing to go to such extremes weighs heavily in the Court’s
determination that he is a flight risk.
Additionally, the Government states that Defendant instructed the minor to leave
her phone behind so it could not be tracked, looked at maps of Kentucky to determine
how to avoid cameras, and discussed having the minor leave behind a suicide note,
which Defendant reviewed to ensure the minor’s parents would believe it when they
read it on Christmas morning. (Id.) Defendant drove to Kentucky, where he was
stopped on the way by Kansas police; when questioned, he was prepared with a cover
story, knowing the true reasons for his journey were wrong. The Court finds that
Defendant’s willingness to lie to law enforcement—and that he had the wherewithal to
do so—militates in favor of a finding that he is a danger to the community.
Once Defendant and the minor arrived in Colorado, they engaged in an
elaborate scheme to smuggle the minor in and out of Defendant’s parents’ homes,
which involved wrapping her in a blanket and lying to his parents. (Id. at 22.)
Defendant’s father kicked him out of the house, suspecting the minor was underage.
(Id.) Similarly, Defendant’s mother and stepfather kicked him out of their home;
however, the Court notes that there is no evidence that they affirmatively took any
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action to inform law enforcement of their suspicions that Defendant was engaged in a
sexual relationship with a minor, though Defendant’s mother did identify the minor as
the child her son brought home when law enforcement came to her home. Their
extraordinarily poor judgment in this regard cripples Defendant’s argument that they are
suitable third-party custodians for him, if released. (ECF No. 27 at 11.)
Defendant and the minor fled to Texas when the family informed them that the
police had stopped by his parents’ home. (ECF No. 29-1 at 23.) This trip represents
the second time Defendant and the minor crossed state lines, again strengthening the
Court’s conclusion that Defendant is a flight risk. On at least two occasions, he has
demonstrated a willingness to flee or lie to evade law enforcement. Given the
foregoing, the Court finds that the nature and circumstances of the crimes charged
strongly weigh in favor of denying the Motion.
B. 	Weight of the Evidence
Second, the Court considers the weight of the evidence against Defendant. The
Court finds that the weight of the evidence is very strong. According to the
Government, the evidence includes over 8,000 messages sent between Defendant and
the minor; pornographic images of the minor recovered from Defendant’s phone;
content on Defendant’s phone showing e-mails and a search history reflecting his
preparation for travel and steps taken to hide the minor from his family; interviews of the
minor; police videos of car stops involving Defendant in Kansas, when Defendant was
going to get the minor from Kentucky, and when he was stopped in Texas with the
minor, after fleeing from Colorado; photos of Defendant’s license plate from his trip to
Kentucky; video of Defendant and the minor in a hotel in Pueblo, Colorado, as they fled
to Texas; corroborative DNA evidence showing that Defendant’s DNA profile is
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consistent with the male DNA profile taken from the rape kit of the minor; and photos
taken in Defendant’s mother’s home pursuant to a search warrant that corroborate the
minor’s disclosures. (ECF No. 29 at 8–9.) Given the foregoing, the Court finds that the
weight of the evidence strongly supports detention. See United States v. Bragg, 2021
WL 6143720, at *3 (10th Cir. Dec. 30, 2021) (rejecting defendant’s argument that the
district court’s emphasis on the weight of the evidence was contrary to the presumption
of innocence guaranteed by his right to due process and reaffirmed by 18 U.S.C. §
3142(j)).
C. 	History and Characteristics
Third, the Court considers the history and characteristics of Defendant.
Defendant’s lack of criminal history weighs in favor of release; however, his lack of
employment weighs against it. Defendant’s financial resources are unclear from the
evidence offered at the detention hearing, but they are apparently significant enough to
support Defendant’s travels to Kentucky and Texas with the minor, which weighs
against release.
While the Defendant alleges he has been diagnosed with autism, the Court takes
judicial notice that this is a diagnosis with a wide range of levels of severity.2 	More
importantly, the circumstances of the charged crimes demonstrate that despite this
diagnosis, Defendant was capable of forming an online relationship with the minor,
convincing her to run away with him, obtaining a driver’s license, planning the journey to
and from Kentucky, lying to law enforcement in Kansas about the reasons for his trip,
2 Autism Spectrum Disorder, National Institute of Mental Health,
https://www.nimh.nih.gov/health/topics/autism-spectrum-disorders-asd (“Autism is known as a
‘spectrum’ disorder because there is wide variation in the type and severity of symptoms people
experience.”) (last visited Oct. 17, 2022).
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hiding the minor from his family, and fleeing to Texas to evade law enforcement. The
Court agrees with the Government’s assessment that Defendant’s alleged “actions
show a clear understanding for his actions and their illegality; a clear ability to form
intent; and a clear ability to create and execute a detailed plan that involves great harm
to a minor child, her family, and the community.” (ECF No. 29 at 10.) All of these
circumstances lead the Court to conclude that Defendant is a flight risk and a danger to
the community. See Cisneros, 328 F.3d at 618 (defendant considered a flight risk
because of her present knowledge of the seriousness of the charges against her).
Also relevant to this factor is Defendant’s argument that his mother and
stepfather would be reliable third-party custodians of him if released. The Court
acknowledges Defendant’s assertion that he has strong family ties to Colorado. (ECF
No. 27 at 11.) However, those same family ties existed at the time Defendant engaged
in all of the foregoing alleged conduct, and critically, at the time he and the minor fled to
Texas. Based on the proffered evidence of his family’s actions while Defendant and the
minor were in Colorado, the Court disagrees with Defendant’s assertion that his family
would properly ensure his compliance with any court-imposed conditions of release.
D. 	Danger to Any Person or the Community
Finally, the Court considers the nature and seriousness of the danger to any
person or the community that would be posed by Defendant’s release. The Court
incorporates by reference its findings and analysis from Part III.A. Defendant argues
that the charges are specific to the single minor involved here and points out that he has
never been accused of engaging in any inappropriate relationship with any other
person. (ECF No. 27 at 12; ECF No. 29-1 at 28.) To the extent Defendant suggests
that his targeted conduct indicates he is not a danger to other minors, the Court finds
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his argument is unsupported. The Court agrees with Judge Crews’s observation that
“the nature of the conduct here implicates a community-wide concern and a community-
wide danger,” exemplified by the community-wide search for the minor in Kentucky
based on the suicide note that was left at least in part due to Defendant. (ECF No. 29-1
at 33.)
Taking all four factors into consideration, the Court finds that despite a few stray
facts weighing against detention (such as Defendant’s lack of criminal history), the vast
majority of the factors weigh in favor of pretrial detention. There is not a combination of
conditions that the undersigned could impose to provide the reasonable assurance of
Defendant’s attendance in court or the safety of the community.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS:
1. 	Defendant Emery Wayne Trombley, Jr.’s Motion to Review Magistrate Court’s
Order of Detention and Grant Him Pretrial Release In Accordance With the Bail
Reform Act (ECF No. 27) is GRANTED IN PART and DENIED IN PART;
2. 	The Motion is GRANTED to the extent it asks the Court to review de novo
whether Defendant should be detained pretrial but DENIED to the extent it seeks
pretrial release on bond; and
3. 	Defendant shall continue to be DETAINED pursuant to the conditions set forth in
Judge Crews’s July 29, 2022 Order of Detention (ECF No. 15).
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Dated this 17 th day of October, 2022.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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