Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 1 of 18 PageID #: 38

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1 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 1 of 18 PageID #: 38 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) Cause No. 1:16-mj MJD ) KYLE COX, ) ) Defendant. ) MOTION FOR INITIAL ORDER OF STAY PENDING REVIEW AND MOTION FOR REVOCATION OF RELEASE ORDER The United States of America, by counsel, Josh J. Minkler, United States Attorney for the Southern District of Indiana, and Steven DeBrota, Senior Litigation Counsel, and Kristina Korobov, Assistant United States Attorney, respectfully moves the Court for revocation of the release order issued by the Honorable Debra McVicker Lynch permitting the pretrial release of Kyle Cox pursuant to 18 U.S.C. 3142(f). In support of its motion, the United States advises the Court as follows: I. The Offense PROCEDURAL HISTORY Criminal Complaint: On February 4, 2016, a criminal complaint was issued charging Defendant with coercion and enticement of a 15 year old minor to engage in illegal sexual activity, and attempt to do so. This statute provides that, Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the

2 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 2 of 18 PageID #: 39 United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. This statute incorporates both state and federal law in determining whether the underlying sexual activity is a criminal offense, including federal law prohibiting the sexual exploitation of a child and attempts to do so (18 U.S.C. 2251(a)), and Indiana law prohibiting sexual misconduct with a minor ( ). Sexual Exploitation of a Child (18 U.S.C. 2251(a)): This federal statute provides that Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such

3 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 3 of 18 PageID #: 40 visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. It is also a crime to attempt to sexually exploit a child. 18 U.S.C. 2251(e). Sexual Misconduct with a Minor (Indiana Code ): This Indiana statute prohibits sexual intercourse, other sexual conduct, and / or touching or fondling with the intent to arouse or satisfy sexual desires, between a person who is at least 18 years of age and a child who is 14 or 15 years old. II. Pretrial Detention Hearing Defendant appeared for a detention hearing before the Honorable Debra McVicker Lynch on February 8, The United States moved for pre-trial detention on multiple grounds. Specifically, the government urged that detention was appropriate in this case given (1) the risk that Defendant would fail to appear at future court hearings, and (2) the danger Defendant poses to the community. See 18 U.S.C. 3142(e), (f)(2)(a), (f)(2)(b). Moreover, as the government pointed out, Defendant s charge creates a presumption in favor of detention, pursuant to 18 U.S.C. 3142(e)(3)(E). Contrary to the government s position, the Probation Office recommended release. That recommendation was, however, based on scant and skewed information. To begin, Probation never actually interviewed the Defendant. Furthermore, as the content underlying Probation s recommendation shows, that office s recommendation stemmed from information and sources very sympathetic to Defendant.

4 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 4 of 18 PageID #: 41 The personal information Probation had available when it made a release recommendation came from Defendant s mother. Tellingly, the PS3 report prepared in conjunction with Probation s recommendation does not list any of the obstructive behavior or other material matters regarding Defendant that were revealed during the detention hearing. Probation s recommendation may be understandable based on the information Probation possessed; but that recommendation does not fairly reflect the facts of the case that are now apparent to all involved. Because Probation s report was based upon very limited information, and did not consider the many troubling facts in the Complaint, it should not have been given the weight the Magistrate Judge gave it. At the conclusion of the hearing, Magistrate Judge Lynch ordered Defendant s release upon conditions. The United States moved for a stay of the magistrate court s order, which was granted until 5 pm today, February 9, STANDARD OF REVIEW Pursuant to 18 U.S.C. 3145(a), [i]f a person is ordered released by a magistrate judge... the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release.... The motion shall be determined promptly. The Court conducts a de novo review of the magistrate judge s release or detention order and it need not defer to the magistrate s findings. E.g., United States v. Levine, 770 F. Supp. 460, 465 (N.D. Ind. 1991). The Court must state in writing the reasons for the detention of a defendant. 18 U.S.C. 3142(i); Fed. R. App. P. 9(a)(1).

5 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 5 of 18 PageID #: 42 Under 18 U.S.C. 3142(e), a defendant may be ordered detained pending trial if the Court finds one of the following two conditions to be true: (1) no condition or combination of conditions will reasonably assure the appearance of the defendant; or (2) no condition or combination of conditions will reasonably assure the safety of any other person or the community. A finding of either a serious risk the defendant will flee or danger to the community will be sufficient to detain the defendant pending trial. See United States v. Portes, 786 F.2d 758 (7th Cir. 1985) (emphasis added); see also, United States v. Fortna, 769 F.2d 243, 249 (5 th Cir. 1985) (Detention may be based on a showing of either dangerousness or risk of flight; proof of both is not required) (emphasis added). The government must prove danger to the community by clear and convincing evidence. Id. at If the Court finds that no condition or combination of conditions will reasonably assure the appearance of the Defendant as required and the safety of any other person and the community, the Court shall order the detention of the person before trial. 18 U.S.C. 3142(e)(1). In determining whether there are conditions of release that will reasonably assure defendant s appearance and the safety of any other person and the community, the Court takes into account the following factors under 18 U.S.C. 3142(g): (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence... (2) the weight of the evidence against the accused; (3) the history and characteristics of the person, including;

6 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 6 of 18 PageID #: 43 (A) his 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, he was on probation, on parole, or 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.... ARGUMENT A proper assessment of the 3142(g) considerations compels detention in this case. The facts of this case as demonstrated by considerable evidence, the nature of the charge, the potential penalties, and Defendant s history all counsel reversal of the Magistrate Judge s decision to release Defendant. Only detention can ensure the safety of members of our community and ensure Defendant s presence at ongoing proceedings before this Court. A. Nature and Circumstances of the Offense (18 U.S.C. 3142(g)(1)) Strongly Favor Detention The first factor to be considered in determining whether there are conditions of release that will reasonably assure the safety of any other person and the community involves the nature and circumstances of the offense charged. 28 U.S.C. 3142(g)(1). This factor strongly demonstrates that Defendant is an unacceptable danger to the community and an order of detention is appropriate.

7 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 7 of 18 PageID #: 44 During the detention hearing, the Court properly took judicial notice of the underlying facts detailed in the Complaint. Before the hearing, Defendant waived any challenges to the probable cause and charged offense. These facts supported detention, as the Court found at the end of the hearing. But the government believes that the nature and circumstances of the offense should have been given much greater weight. With proper consideration, this factor strongly favors detention. The factual details set forth below underscore at least two things. First, Defendant is obviously willing to go to great lengths to avoid liability for his criminal actions. He will enlist others, including those he has victimized, to avoid exposure and possible punishment. That warrants detention. Second, Defendant s recent actions have demonstrated a clear capacity to endanger vulnerable members of the community. To begin, the complaint shows that Defendant s criminal behavior was not a single aberrant act, but rather multiple, calculated acts designed to sexually exploit and groom a minor. Not only that, but Defendant also engaged in this series of behaviors while exercising considerable control over high school students at Park Tudor. The control Defendant exercised over these high school students affected them both before and after Defendant was allowed to resign his employment on December 15, It is worth pausing over the nature of the charge. The Defendant groomed the victim, identified as Child Victim 1, between approximately October 2015 and approximately December This offense is a very serious sex crime,

8 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 8 of 18 PageID #: 45 with a statutory sentencing range of between 10 years and life in prison. It is also a crime of violence under the Bail Reform Act. See 18 U.S.C Given the seriousness of the charge, it is hardly surprising that a presumption in favor of detention applies. Indeed, that presumption applies even when a defendant has no prior criminal history. Congress has recognized with this presumption that some crimes including the one at the heart of this case require detention even for first offenders. Another aspect of this case deserving the Court s focus is the setting of the crime. The nature and circumstances of this offense cannot be divorced from context: a leading figure in a prominent high school community groomed a student, and involved other students in his schemes. This makes the case much more aggravated than other cases involving coercion and enticement outside the school environment, or featuring defendants whose behavior stops when their actions come to light. Here, Defendant violated the trust of his school community and the community at large when he broke a strong societal taboo by exploiting a student entrusted to him. Defendant s intentional actions following the exposure of his offense throw the matter of detention into a critical light. Indeed, what Defendant did when he first faced detection deserves very strong weight in this Court s consideration of detention. The day before Defendant was allowed to resign, and before he signed a confidentiality agreement with Park Tudor, the Defendant got wind of a potential issue with Child Victim 1. In an effort to avoid criminal prosecution, Defendant responded by demanding that the child victim lie to help him. To

9 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 9 of 18 PageID #: 46 underscore, after violating Child Victim 1 s safety in a manner that runs afoul of a very serious criminal law, Defendant then attempted to use that same child to save his own skin. These facts, which strongly support the conclusion that Defendant should be detailed pending trial, are reliable. They were taken from an interview of Child Victim 1, and corroborated by yet another minor witness, Child Witness 1. Indeed, these facts were not contested during the detention hearing. The relevant portions of the Complaint read as follows: 56. After her parents became aware that the person sending and receiving the images was not a classmate, but rather COX, CHILD VICTIM 1 spoke with COX on approximately December 14 or 15, By that time, COX had received a phone call from the Park Tudor administration requesting a meeting. 57. CHILD VICTIM 1 said that COX sent her messages using Instagram and told her that she needed to lie about their relationship if she wanted COX to stay at Park Tudor. COX wanted her to falsely claim that she created both sides of all of the text messages. 58. CHILD VICTIM 1 told COX that she was freaking out and that her father already had the texts. COX told her that he was going to be in a lot of trouble if she told the truth about what had happened. CHILD VICTIM 1 responded that she couldn t lie. She told COX that it was not her decision. COX then told CHILD VICTIM 1 to make sure that he, COX, doesn t go to jail. The Complaint further explains that another student witnessed Child Victim 1 s response to this series of communications, as follows: 59. Witness Interview: On January 13, 2016, Det. Smith interviewed a cooperating minor witness regarding the investigation. This witness reported that, on the day before COX resigned, COX messaged CHILD VICTIM 1 using Instagram and said, you got a new phone and am I getting fired? 60. The cooperating witness saw these messages on the phone of CHILD VICTIM 1. The witness said that CHILD VICTIM 1 didn t respond to the message but became very visibly upset. COX sent CHILD VICTIM 1 another message later asking CHILD VICTIM 1 to

10 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 10 of 18 PageID #: 47 lie and tell everyone that she had used COX s ipad in his office and planted the text messages on it. With these facts, the government proved that Defendant attempted to coerce and persuade a child victim to repudiate the clear evidence against him in the form of text messages between himself and Child Victim 1. These messages were described in the complaint, as shown above. Defendant s attempts to cover his tracks did not stop with his coercion of Child Victim 1. When Child Victim 1 refused to lie to protect Defendant, Defendant immediately began a campaign to trash her reputation in the eyes of the other students surrounding her at Park Tudor. These efforts only came to full light when his text messages were recovered following the seizure of his cellular phone on January 7, By that time, Child Victim 1 had already been assaulted by anther male student who frequently communicated with Defendant. This student s communications with the Defendant are detailed in multiple text messages placed in evidence. The messages between Defendant and the male student included multiple statements by Defendant designed to encourage or approve violent behavior targeting the child victim. These messages, and their context, were entitled to significant weight. In addition to highlighting Defendant s willingness to go to great lengths to avoid liability for his criminal actions, these facts demonstrate his capacity to endanger vulnerable members of the community. Even when circumstances conspired in Defendant s favor, he reacted in ways that highlight his unpredictable, self-preservationist, and potentially dangerous impulses. To illustrate, on December 15, 2015, the school signed a

11 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 11 of 18 PageID #: 48 confidentiality agreement with Defendant which, among other things, prohibited him from having any communications with any Park Tudor students and from discussing the reason for his resignation other than as required by law. The Confidentiality Agreement stated that, in exchange for the Defendant s compliance with the agreement, the school would say that the Defendant resigned his employment at the School. This was Exhibit 1 during the hearing. The hearing testimony from a FBI Task Force Officer, who reviewed text messages, showed that Defendant was already discussing future jobs at other educational institutions after he signed the confidentiality agreement with the school. Because of this confidentiality agreement, Defendant had no further reason to worry about his ability to gain employment with another institution. He told the male student that his job prospects were favorable. Despite this undeserved stroke of good fortune, Defendant continued to exhibit and communicate an ongoing motive to retaliate against Child Victim 1 for revealing the truth about his behavior. Indeed, his communications following the signing of the confidentiality agreement were highly significant for detention purposes. On December 16, 2015, a day after his resignation from the school, the Defendant exchanged text messages with a male student who attended the school. Defendant discussed what was likely going to happen with Defendant now and fallout of the events with CHILD VICTIM 1. Defendant began by spinning his outlook positively. He stated that everyone was supporting him and that he could work anywhere in the state.

12 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 12 of 18 PageID #: 49 Defendant discussed various coaching jobs in which he was interested and told the student: the nice thing is that I can get any job in the state.... I ve positioned myself to be marketable. (Complaint, paragraph 89) The Defendant s messages then took a much darker turn. In discussing CHILD VICTIM 1, Defendant wrote in a text message sent to the male student on December 16, 2015, stating: I would turn my head if you messed her up. (Detention Hearing Exhibit 2). The testimony during the hearing showed that this was a reference to hurting CHILD VICTIM 1. In short, this retaliatory statement encouraged one student to engage in an act of violence toward another student the very student Defendant had already victimized. That is remarkable and more than sufficient to alert this Court to the need for detention to protect the community. At that time, CHILD VICTIM 1 was the victim of a serious federal sex crime and entitled to protection from such retaliation and abuse. Yet, in secret communications between Defendant and the male student, Defendant made outrageous statements he must have foreseen would encourage violence, retaliation, and victim intimidation. This was only the beginning of the campaign. On December 17, 2015, Defendant told the student to ask her [CHILD VICTIM 1] if it s making her feel better to slander me. Defendant then told the student I m sure you ll find the right chance to say something to her. (Detention Hearing Exhibit 4). When Defendant made this statement, he knew Child Victim 1 was telling the truth about what happened between them.

13 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 13 of 18 PageID #: 50 Matters then escalated to actual violence. The government presented text messages between Defendant and the male student describing a violent assault on Child Victim 1 and another minor girl occurring at the school. The motivation for the assault was for the male student to keep private his secret and troubling communications with Defendant. The male student described his assault on these girls and Defendant approved the result, with language stating Defendant s hope that they received concussions when thrown to the floor. (Detention Hearing Exhibit 3) As this redacted language from the relevant exhibit shows, Defendant has demonstrated a willingness and capacity to extend the serious danger he poses to the community beyond the crime charged: Male Student: Ur in my phone as CC and when u sent that Child Victim 1 (named) and (another girl named) walked in and picked up my phone so when they asked who it was I said a girl who used to go to my school... Child Victim 1 then tok my phone and ran out the door and so I took her by the neck and threw her to the ground... When she dropped the phone and (the other girl named again) picked it up so I just had to thow her to the ground too so year too bad for them Male Student: That is how practice is going Defendant: Jeez I m sorry man Male Student: Well Defendant: I don t want to cause you trouble but thanks for having my back as always Male Student: Yeah no problem... It was fun knocking her ass to the ground Defendant: It would have been pretty epic if you would have caused a concussion lol (meaning laugh out loud) Male Student: Yah LOL I wish Defendant: Would only make her more psycho probably (Detention Hearing Exhibit 3)

14 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 14 of 18 PageID #: 51 This text message offers a fitting coda to the significant evidence the government brought to bear at the detention hearing. As this and other evidence catalogued above demonstrates, the Defendant has shown that he poses an ongoing danger to certain members of the community. Equally, the Defendant has shown that he is eager to avoid a reckoning for his conduct. Given the serious punishment he will face if convicted, the Court should detain Defendant to ensure that the predispositions of Defendant revealed by this evidence do not result in further harm to students or in efforts to avoid this Court s orders and proceedings. B. The Weight of the Evidence (18 U.S.C. 3142(g)(2)) Supports Detention The second factor, the weight of the evidence against the accused, see 18 U.S.C. 3142(g)(2), likewise weighs heavily in support of detention. The detailed affidavit submitted in support of the Complaint demonstrates that the weight of the evidence in this case is strong. It is unnecessary to recount the evidence detailed above to understand the weight of the evidence supporting detention. What s more, Defendant has presented little to counterbalance the weighty evidence favoring detention. Defendant did not present any real substantive evidence concerning the weight of the evidence against him. Given the weighty evidence against Defendant, and his failure to rebut that evidence in any meaningful fashion, the Court should find that this factor weighs heavily in favor of detention, especially in light of the substantial punishment that accompanies his charged crime.

15 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 15 of 18 PageID #: 52 C. Defendant s History and Characteristics (18 U.S.C. 3142(g)(3)) The Magistrate Judge found that the evidence before the Court with regard to the third factor weighed against detention. Although this conclusion was not inconsistent with the evidence generally, this factor does not weigh entirely in Defendant s favor. Indeed, a properly nuanced perspective on these factors undermines any claim that this factor can alone justify release. Defendant committed the instant offense over a sustained period of time. He abused of position of trust. And he possesses untreated sexual attraction to a minor. These facts show that his family ties, length of time in the community, formerly employment had no impact on preventing his criminal behavior. It would be unfounded to conclude (or assume) that the same family and community ties would have a measurable impact on Defendant pending trial. The quality of Defendant s family ties, as those ties pertain to the 3142 analysis, is not of a type that counsels release. During the hearing, Defendant s father repeatedly stated his opinion that his son was not a criminal. Of course, the father s statement was based solely on his son s self-serving (and clearly inaccurate) statement before the arrest that he had resigned from Park Tudor because of a failure to report a mental health issue with a student. This is not the type of family tie which can deter criminal behavior or provide safety to others outside the family. The Magistrate Judge found that Defendant was a long term member of the community, enjoyed family support, and had no criminal history. While the government does not contest these findings, the government does dispute their

16 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 16 of 18 PageID #: 53 weightiness in the 3142 analysis. These ties have had no effect on Defendant thus far and they certainly do not appear capable of counteracting his demonstrated willingness to endanger minors and his equally demonstrated eagerness to avoid punishment. D. The Nature and Seriousness of the Danger to the Community (18 U.S.C. 3142(g)(4)) Defendant Poses Strongly Favor Detention This factor strongly favors detention. Defendant s actions show an utter disregard for the health, safety, reputation and welfare of Child Victim 1 and other students close to her. He encouraged another student, the male involved in the text messages outlined above, to cause additional harm and injury to the victim s reputation purely for improper, obstructive, and retaliatory reasons. He presents and unacceptable danger if released. Finally, in the event the Court rejects the government s position and determines that release is appropriate despite the dangers Defendant poses, the release plan should be modified. The release plan contained in the Magistrate Judge s order calls for Defendant to reside with his parents. As Defendant s father admitted, however, both parents work during the day. Given the obvious gap in responsibility that creates, the plan does not provide sufficiently for the safety of the minor victims and witnesses in this case. Moreover, the Magistrate Judge s apparent conclusion that the father was not a fitting guardian for Defendant pending trial in light of the father s belief in his son s innocence also counsels a modification to this aspect of the plan in the event the Court chooses to release Defendant.

17 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 17 of 18 PageID #: 54 CONCLUSION In light of the foregoing, the United States has established by clear and convincing evidence that no condition or combination of conditions of release set forth under 18 U.S.C (b) or (c) will reasonably assure the safety of the community and the defendant s appearance at future court proceedings. WHEREFORE, the United States of America prays this Court revoke the release order for the Defendant, and for all other just and proper relief. Respectfully submitted, JOSH J. MINKLER United States Attorney By: s/steven D. DeBrota Steven D. DeBrota Senior Litigation Counsel By: s/kristina Korobov Kristina Korobov Assistant United States Attorney

18 Case 1:16-mj MJD Document 10 Filed 02/09/16 Page 18 of 18 PageID #: 55 CERTIFICATE OF SERVICE I hereby certify that on February 9, 2016, a copy of the foregoing MOTION FOR INITIAL ORDER OF STAY PENDING REVIEW AND MOTION FOR REVOCATION OF RELEASE ORDER was filed electronically. Notice of this filing will be sent to the following parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. By: s/steven D. DeBrota Steven D. DeBrota Senior Litigation Counsel Office of the United States Attorney 10 W. Market Street, Suite 2100 Indianapolis, IN Telephone: (317) Fax: (317) Steve.DeBrota@usdoj.gov