USA v. Forsberg

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, 	)
)
Plaintiff, 	) 	ORDER
)
vs. 	)
)
McKenzie Craig Forsberg, 	) 	Case No. 1:24-cr-007
)
Defendant. 	)
Defendant has executed a plea agreement and on July 25, 2024, entered a guilty plea to
offense charged in Count One of his Indictment: attempted coercion and enticement of a minor in
violation of 18 U.S.C. § 2422(b). (Doc. Nos. 39 and 44). His sentencing hearing is scheduled for
November 6, 2024. (Doc. No. 43).
On August 27, 2024, Defendant filed a Motion for Reconsideration of Order of Detention.
(Doc. No. 46). The court previously ordered Defendant detained, finding that he had not presented
sufficient evidence to rebut the presumption of detention and that the 18 U.S.C. § 3142(g) factors
otherwise weighed heavily in favor of detention. 	(Doc. No. 20). 	Defendant asks the court to
reconsider its order and release him to the third-party custody of his mother on October 9, 2024, so
that he can pay his respects to a brother who passed away while he has been in custody, seek
outpatient counseling while awaiting sentencing, and otherwise get his affairs in order.
On September 5, 2024, the United States filed a response in opposition to Defendant’s
motion. (Doc. No. 48). It asserts that the continued detention of Defendant through sentencing is
mandate by statute. See 18 U.S.C. §§ 3143(a)(2)(A) and 3156(a)(4)(C). 	It further asserts that
Defendant’s release plan is similar to one previously rejected by the court, that Defendant’s
1
Case 1:24-cr-00007-DLH Document 49 Filed 09/09/24 Page 1 of 4

extensive criminal history and history of noncompliance with court orders continues to weight in
favor of detention, and that residence Defendant proposes to reside lacks security, supervision, and
structure.
Defendant had entered a guilty plea to a crime of violence. See United States v. Little, 485
F.3d 1210, 1211 (8th Cir. 2007) (recognizing coercion and enticement of a minor is a crime ov
violence); see also United States v. Zupnik, No. CR. 16-50110-JLV, 2019 WL 2422605, at *1
(D.S.D. June 10, 2019) (“Attempted enticement of a minor using the internet under 18 U.S.C. §
2422(b) is a “crime[ ] of violence within the meaning of ... 18 U.S.C. § 3156(a)(4)(C)” and 18
U.S.C. § 3142(f)(1)(A).”). His request for pre-sentence release is therefore governed by 18 U.S.C.
§ 3143(a)(2), which provides that the judicial officer shall order that a person who has been found
guilty of a crime of violence and is awaiting imposition or execution of sentence be detained unless:
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for
acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of
imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not
likely to flee or pose a danger to any other person or the community.
18 U.S.C. § 3143(a)(2).
Notwithstanding the mandatory detention provisions of § 3143, the court may still release
a defendant pending sentencing pursuant to 18 U.S.C. § 3145(c). Section 3145(c) provides that "[a]
person subject to detention pursuant to section 3143(a)(2) ... and who meets the conditions of release
set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, ...
if it is clearly shown that there are exceptional reasons why such person's detention would not be
appropriate." 18 U.S.C. 3145(c). "The defendant must show by clear and convincing evidence he
2
Case 1:24-cr-00007-DLH Document 49 Filed 09/09/24 Page 2 of 4

is not likely to flee or pose a danger to the community and it also must be shown there are
exceptional reasons why detention is not appropriate." United States v. Tobacco, 150 F. Supp. 3d
1051, 1053 (D.S.D. 2015). 	"‘Exceptional reasons' must include something that is ‘clearly out of
the ordinary, uncommon, or rare.'" Id. (quoting United States v. Helder, No. 05–00125, 2006 WL
4080952 (W.D. Mo. Sept. 21, 2006); see also United States v. Larue, 478 F.3d 924, 925 (8th Cir.
2007); United States v. Smith, 34 F. Supp.3d 541, 553 (W.D. Pa. 2014).
Defendant cannot satisfy the requirements of § 3143(a)(2)(A). There is not a substantial
likelihood that a motion by Defendant for a new trial or acquittal will be granted as Defendant has
executed a plea agreement and voluntarily entered a guilty plea in open court to the charge in Count
One of his Indictment. 	The United States is recommending a sentence of imprisonment for
Defendant.
Defendant has not otherwise demonstrated that extraordinary circumstances exist to warrant
his release. The court appreciates Defendant’s desire to get his affairs in order, pay his respects to
his brother, and look for treatment. However, his circumstances are not clearly out of the ordinary,
uncommon, or rare and therefore are not exceptional within the meaning of 18 U.S.C. § 3145(c).
See e.g., United States v. Brown, 368 F.3d 992, 993 (8th Cir. 2004) (opining that a defendant’s
participation in a treatment program is not an extraordinary reason for purposes of § 3145(c));
United States v. Thomason, 449 F. Supp. 3d 877, 882 (D. Minn. 2019) (opining that a defendant’s
desire to order his affairs is understandable but shared by many in his situation and therefore not an
exceptional); United States v. Green, 250 F. Supp. 2d 1145, 1149 (E.D. Mo. 2003) (“[M]ere personal
reasons . . . .are not ‘exceptional.’”).
Accordingly, Defendant’s Motion for Reconsideration of Order of Detention (Doc. No. 46)
3
Case 1:24-cr-00007-DLH Document 49 Filed 09/09/24 Page 3 of 4

is DENIED.
IT IS SO ORDERED.
Dated this 9th day of September, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
4
Case 1:24-cr-00007-DLH Document 49 Filed 09/09/24 Page 4 of 4