Opposition Brief — Jerald Francis Gray, Petitioner v. United States

No. 22-5113

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JERALD FRANCIS GRAY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

JOHN-ALEX ROMANO

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the court of appeals’ order affirming the district

court’s

pretrial

detention

decision

deferential standard of review.

(I)

applied

an

impermissibly

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 22-5113

JERALD FRANCIS GRAY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The order of the court of appeals (Pet. App. 4) is unreported

but is available at 2022 WL 3036991.

The order of the district

court (Pet. App. 5-10) is unreported but is available at 2022 WL

198573.

JURISDICTION

The judgment of the court of appeals was entered on March 14,

2022.

A petition for rehearing en banc was denied on April 11,

2022 (Pet. App. 3).

The petition for a writ of certiorari was

filed on July 11, 2022.

under 28 U.S.C. 1254(1).

The jurisdiction of this Court is invoked

2

STATEMENT

Petitioner is charged in the Western District of Virginia

with possessing child pornography, in violation of 18 U.S.C.

2252(a)(4)(B)

and

2252(b)(2).

The

district

petitioner’s request for release pending trial.

The court of appeals affirmed.

1.

court

denied

Pet. App. 5-10.

Id. at 4.

On December 16, 2021, petitioner was charged by criminal

complaint in the Western District of Virginia with possessing child

pornography, in violation of 18 U.S.C. 2252(a)(4).

Complaint 1.

According to the affidavit supporting the criminal complaint,

on December 8, 2021, the Federal Bureau of Investigation (FBI)

executed a search warrant at petitioner’s home in Covington,

Virginia, for evidence relating to the receipt, distribution, and

possession of child pornography.

Complaint Affidavit 2.

During

the search, investigators found a desktop computer with a locally

saved folder that was labeled with the name of a peer-to-peer file

sharing network; the folder contained approximately 60 files, many

with names indicative of material involving sexual activity with

children, such as “New 2016 Pedo Childlover 8yo.”

Ibid.

One of

the files (“Linda Full.mpg”) was a video that depicted a minor

female, who was naked and appeared to be prepubescent, orally

copulating a male who appeared to be of adult age.

Id. at 2-3.

Petitioner admitted to investigators that he was the primary user

of the computer; that he had used a peer-to-peer file sharing

3

network to download “a couple or a few dozen videos” of children

engaged in sexual activities, as well as images of such activities;

that he was interested in watching young teen girls; and that

sometimes he also downloaded videos involving younger children.

Id. at 3.

On

January

13,

2022,

a

federal

grand

jury

returned

an

indictment charging petitioner with one count of possessing child

pornography, in violation of 18 U.S.C. 2252(a)(4)(B) and (b)(2).

Indictment 1-2.

2. Following petitioner’s arrest on the criminal complaint,

the government moved for pretrial detention, pursuant to 18 U.S.C.

3142(e).

Pet. App. 5.

hearing on the motion.

The magistrate judge held an evidentiary

Id. at 23-48; see 18 U.S.C. 3142(f).

The

government’s witness, FBI Special Agent Lynne Witt, testified

about the evidence uncovered during the execution of the search

warrant

--

including

approximately

60

files

depicting

child

pornography, some depicting minors under the age of 12 -- and

petitioner’s admission that he had downloaded child pornography

using a peer-to-peer file sharing network.

Pet. App. 26-29.

Special Agent Witt also testified about a second interview of

petitioner, held after he had voluntarily submitted to a polygraph

examination.

During the second interview, petitioner admitted

that, in 2005, he had sexually molested a 12-year-old girl who had

been visiting his then-minor daughter at their residence, by

4

kissing the girl’s breasts and later touching her buttocks. Pet.

App. 30-31.

Petitioner also admitted that, before 2005, he had

touched the breasts of an underage babysitter in his home.

31-32.

Id. at

According to petitioner, he “preferred” early- or pre-teen

girls, and described occasions when he had masturbated while

thinking about underage girls whom he had seen in public.

Id. at

32.

The magistrate judge ordered that petitioner be detained

pending trial, finding “by clear and convincing evidence that

[petitioner] is a danger to the community,” Pet. App. 59, and that

“no

condition

reasonably

or

assure

combination

of

conditions

of

the

of

any

person

safety

other

community,” id. at 12; see 18 U.S.C. 3142(e)-(f).

release

will

and

the

The magistrate

judge found that “the evidence of the underlying offense is strong,

and further evidence shows that the defendant has been involved in

past contact offenses with minors.” Id. at 13.

And the magistrate

judge found that petitioner’s proposed “home plan,” under which he

would move out of the residence that he was sharing with his

daughter and two grandchildren, “did not reasonabl[y] assure the

safety

of

the

community

given

the

submitted at the detention hearing.”

3.

strength

of

the

evidence

Ibid.; see id. at 59-60.

Petitioner requested review of the magistrate judge’s

detention order by the district court.

See 18 U.S.C. 3145(b).

The district court agreed that, “based on clear and convincing

5

evidence,

* * *

there are no conditions of release that ‘will

reasonably assure

community

. . .

. . .

.’ ”

the safety of any other person and the

Pet. App. 5 (quoting 18 U.S.C. 3142(e)(1)).

The district court observed that “[t]he charged offense,”

involving

the

pornography,

possession

“is

a

of

serious

at

least

60

images

of

child

one”;

that

it

carried

a

maximum

statutory penalty of 20 years of imprisonment because “one or more

of

the

pornographic

images”

found

on

his

computer

allegedly

“depicted a child younger than 12”; and that the evidence that

petitioner possessed child pornography was “very strong.”

Pet.

App. 8-9; see, e.g., id. at 9 (observing that petitioner “admitted

to investigators that he utilized his computer (and the IP address)

to download and view” the images at issue); see also 18 U.S.C.

2252(b)(2).

And while the court “credit[ed]” certain “positive

qualities” in petitioner’s background, such as his history of

stable

employment,

the

court

could

not

“overlook

his

recent

admissions to federal law enforcement agents that he sexually

molested

minors

at

his

home

on

multiple

occasions,”

or

his

acknowledgement of “having a predilection for teenage and pre-teen

girls and taking steps to gratify himself sexually after seeing

children in public.”

Pet. App. 4.

The district court accordingly found that petitioner “pose[d]

a danger to the community” and rejected petitioner’s contention

that “this risk can be mitigated by imposing a condition of release

6

that bars him from his residence and requires him to live in a

nearby hotel.”

Pet. App. 10.

In particular, the court found that

while petitioner might not pose a danger to his grandchildren,

“there [wa]s abundant evidence in the record that [petitioner],

through his prior acts of child molestation and procuring child

pornography, poses an acute risk to other persons in the community

-- particularly minor females who are not members of his immediate

family.”

3.

Ibid.

Petitioner appealed, and the court of appeals issued a

summary order of affirmance.

Petitioner

contended

Pet. App. 4.

that,

in

relation

to

the

detention

order, the court of appeals should conduct an “independent review”

of “questions of law and mixed questions of law and fact” and

should review the district court’s factual findings for clear

error.

Pet. C.A. Br. 7.

Petitioner maintained that the court of

appeals had never “directly addressed” the appropriate standard

for reviewing a district court’s pretrial detention ruling under

the Bail Reform Act of 1984, 18 U.S.C. 3141 et seq. (1984 Act).

Pet. C.A. Br. 7-9 (emphasis omitted).

Petitioner noted that in a

decision issued shortly after the 1984 Act came into force, United

States v. Williams, 753 F.2d 329 (4th Cir. 1985), the court had

reviewed the detention ruling for clear error on the assumption

that the pre-1984 Act standard of review continued to apply.

According to petitioner, subsequent cases continued to assume this

7

standard applied without “squarely address[ing]” whether the 1984

Act “compelled a new standard of review.”

Petitioner

asserted

that

almost

“all

Pet. C.A. Br. 7-8.

other

circuits

conduct

independent review where the lower court’s determination resolves

questions of law,” and urged the court of appeals here to follow

that approach.

Id. at 9-17.

On the merits, petitioner contended

that a combination of conditions existed that could reasonably

assure the safety of the community if he were to be released

pending trial, and that the district court improperly weighed the

statutory factors relevant to that inquiry.

The

government

contended

that

Id. at 18-24.

Fourth

Circuit

precedent

required reviewing the district court’s detention order under the

clear-error

standard,

and

that

the

order

should

regardless of which standard of review applied.

18.

be

affirmed

Gov’t C.A. Br. 6-

In reply, petitioner reiterated that the court of appeals had

never resolved the appropriate standard of review applicable to a

pretrial detention order.

Pet. Reply Br. 1-4.

The court of appeals’ order stated: “Upon review of memoranda

relative to this bail appeal, the court affirms the district

court’s order regarding release.”

Pet. App. 4.

indicate which standard of review it applied.

The court did not

Ibid.

ARGUMENT

Petitioner contends (Pet. 3-13) that review is warranted to

resolve a conflict in the courts of appeals over the standard of

8

review that should be applied to a district court’s pretrial order

of detention.

That issue does not warrant this Court’s review,

particularly in this case.

Any disagreement among the courts is

narrow, as all circuits afford deference to the district court’s

factual determinations concerning pretrial detention.

And this

case is not an appropriate vehicle for resolving the question

presented because the court of appeals’ summary affirmance never

stated what standard of review the court applied, and the detention

order would be affirmed under any standard given the seriousness

of the offense charged, the strength of the evidence, and the

danger petitioner presents to the community.

1.

Under Section 3142(e), a judicial officer may order the

pretrial detention of a criminal defendant “[i]f, after a hearing

pursuant to the provisions of [Section 3142(f)], the judicial

officer finds that no condition or combination of conditions will

reasonably assure the appearance of the person as required and the

safety

of

3142(e)(1).

any

other

person

and

the

Section

3142(g)

sets

community.”

forth

four

18

factors

U.S.C.

to

be

considered in determining whether any conditions of release could

“reasonably assure the appearance of the person as required and

the safety of any other person and the community” -- namely, “(1)

the nature and circumstances of the offense charged

* * *; (2)

the weight of the evidence against the person; (3) the history and

characteristics of the person

* * *; and (4) the nature and

9

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).

A defendant

who is ordered detained pending trial may appeal that order to the

court

of

promptly.”

appeals,

where

“[t]he

appeal

shall

be

determined

18 U.S.C. 3145(c).

The court of appeals correctly affirmed the detention order

in this case, because each of the relevant factors in Section

3142(g) militates in favor of pretrial detention.

Petitioner is

charged

possession

with

a

serious

offense

involving

the

of

approximately 60 files depicting child pornography, one or more of

which depicts a child under the age of 12.

U.S.C.

3142(g)(1).

The

evidence

Pet. App. 8-9; see 18

supporting

that

offense

is

undeniably strong, as it includes both the files seized from

petitioner’s computer and his own admissions to law enforcement.

Pet. App. 8-9; see 18 U.S.C. 3142(g)(2).

And, the record before

the lower courts contains substantial evidence that petitioner

would pose a serious danger to the community if released, see 18

U.S.C. 3142(g)(4), as petitioner admitted to law enforcement that

he had sexually assaulted two minor females, including by kissing

the breasts of a 12-year-old girl and later touching her buttocks;

admitted that he had a predilection for pre-teen or young teenage

girls; and described occasions when he had masturbated while

thinking about minor females he had seen in public, see Pet. App.

6-7, 30-32.

10

The

district

court

thus

properly

rejected

petitioner’s

proposed plan to move out of his residence, where he was living

with his daughter and two grandchildren, into a hotel.

As the

court found, “through his prior acts of child molestation and

procuring child pornography,” petitioner “pose[d] an acute risk to

other persons in the community —- particularly minor females who

are not members of his immediate family.”

Pet. App. 10.

And the

court of appeals properly affirmed the lower court’s ruling that

no

condition

or

“reasonably assure

combination

* * *

of

conditions

reasonably

could

the safety of any other person and the

community” if petitioner were to be released pending trial.

18

U.S.C. 3142(e).

2.

Any divergence among the courts of appeals as to the

standard of review applicable to a pretrial order of detention

does not warrant this Court’s review.

And in any event, this case

would not provide an appropriate vehicle for considering that

question.

a.

A majority of circuits has approached review of pretrial

detention determinations with “due deference to the trial court’s

purely

factual

findings,”

while

conducting

“plenary

independent” review of “mixed questions of law and fact.”

and

United

States v. Hurtado, 779 F.2d 1467, 1471-1473 (11th Cir. 1985)

(citing United States v. Maull, 773 F.2d 1479, 1487 (8th Cir. 1985)

(en banc)); United States v. Motamedi, 767 F.2d 1403, 1403 (9th

11

Cir. 1985); United States v. Hazime, 762 F.2d 34, 36-37 (6th Cir.

1985); United States v. Bayko, 774 F.2d 516, 519-520 (1st Cir.

1985); United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.

1985)); accord United States v. Portes, 786 F.2d 758, 762 (7th

Cir. 1985); United States v. Cook, 880 F.2d 1158, 1160 (10th Cir.

1989).

Other circuits have looked to whether the determination is

“supported by the proceedings below,” United States v. Fortna, 769

F.2d 243, 250 (5th Cir. 1985) (citation omitted), or applied a

clear-error standard, see United States v. Mattis, 963 F.3d 285,

291 (2d Cir. 2020); United States v. Williams, 753 F.2d 329, 333

& n.12 (4th Cir. 1985); see also United States v. Munchel, 991

F.3d 1273, 1282 (D.C. Cir. 2021) (reviewing for clear error, but

noting that “[i]f

[c]ourt

considered

supported

release

* * *

it does not appear that the [d]istrict

substantial

when

countervailing

analyzing

the

evidence

detention

that

factors,

we

sometimes remand for reconsideration rather than reverse”).

The scope of any disagreement is narrow and unlikely to make

a difference in a significant number of cases. All circuits afford

some deference to the district court’s factual determinations in

ruling on pretrial release.

See, e.g., Portes, 786 F.2d at 763;

Hurtado, 779 F.2d at 1472; Maull, 773 F.2d at 1487; Motamedi, 767

F.2d at 1405; Hazime, 762 F.2d at 37.

Indeed, after discussing

the various standards adopted in other circuits, the Eighth Circuit

concluded that they are not “totally inconsistent,” given the

12

agreement regarding review of factual determinations.

F.2d at

1487.

As

some

circuits applying

Maull, 773

a less-deferential

standard of review have expressly recognized, two of the four

factors -- the defendant’s history and characteristics and risk of

dangerousness if released, see 18 U.S.C. 3142(g)(3) and (4) -- are

primarily factual inquiries subject to deference.

779 F.2d at 1472; Maull, 773 F.2d at 1487.

See Hurtado,

And even when making

a putatively de novo or independent determination on the ultimate

question whether the statutory factors as a whole warrant detention

or release pending trial, courts “temper[]” their analysis with

“deference to the district court’s firsthand judgment of the

situation.”

Bayko, 774 F.2d at 520; see Portes, 786 F.2d at 763

(explaining that court gives “great weight to the assessment of”

the magistrate judge and district court because they are, “in all

probability, much closer to the case”); Delker, 757 F.2d at 1400

(explaining that courts should “give the reasons articulated by

trial judges respectful consideration”).

Furthermore, even if the issue might warrant this Court’s

review in some case, this one is not an appropriate vehicle because

petitioner disputed whether the court of appeals has binding

standard-of-review

precedent,

and

the

court’s

nonprecedential

summary order did not specify the standard of review that it

applied.

Pet. App. 4.

Although the government advocated for a

clear-error standard under circuit precedent, see Gov’t C.A. Br.

13

6-18,

petitioner

argued

that

circuit

precedent

had

not

definitively decided the issue and urged the court to conduct an

independent review of the district court’s detention decision, see

Pet. C.A. Br. 7-9, 13-17; Pet. C.A. Reply Br. 1-4; pp. 6-7, supra,

and the government contended that affirmance was appropriate under

that standard as well, Gov’t C.A. Br. 6-18.

Because the court of

appeals summarily “affirm[ed] the district court’s order regarding

release” without expressly addressing the standard of review, Pet.

App. 4, it is not clear how it viewed the point of dispute between

the parties.

This Court is one “of review, not of first view,” Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005), and ordinarily does not

address issues that were not passed upon in the decision below,

see United States v. Williams, 504 U.S. 36, 41 (1992). That course

is

particularly

appropriate

here,

because

the

outcome

of

petitioner’s appeal would be the same regardless of the standard

of review.

Petitioner’s primary dispute appears to focus on his

dangerousness to the community (Pet. C.A. Br. 18-22) -- a factor

that

even

courts

applying

less-deferential

recognized as subject to limited review.

1472; Maull, 773 F.2d at 1487.

standards

have

See Hurtado, 779 F.2d at

And given all the evidence

presented that petitioner poses a danger to the community if

released, the dangerousness finding here would be upheld under any

standard.

In light of Petitioner’s past sexual assaults on young

14

girls, collection of child pornography of sexual activity with

other young girls, and self-satisfaction of lust for young girls,

Pet. App. 9, simply moving to a hotel -- where he could encounter

young girls -- will not “reasonably assure

any other person and the community.”

* * *

the safety of

18 U.S.C. 3142(g).

Moreover, because trial is currently scheduled for January 5,

2023, it is likely that the issue of pretrial detention will be

moot before any decision on the merits is possible.

Hunt, 455 U.S. 478, 481-482 (1982) (per curiam).

acquitted, he will be released.

See Murphy v.

If petitioner is

If he is found guilty, he will be

subject to the separate standards for postconviction detention,

see 18 U.S.C. 3143.

Review of the pretrial-detention orders below

would therefore have no application to his detention status.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

JOHN-ALEX ROMANO

Attorney

OCTOBER 2022