United States of America v. Dallas Tyler Ewton

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DALLAS TYLER EWTON,
Defendant - Appellant.
No. 21-7052
(D.C. No. 6:21-CR-00252-TDD-1)
(E.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
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Before PHILLIPS, MORITZ, and EID, Circuit Judges.
_________________________________
Dallas Tyler Ewton appeals the district court’s order denying his motion for
revocation of his detention order. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3145(c), and we affirm.
I. Background
Mr. Ewton was charged in a criminal complaint with Aggravated Sexual
Abuse in Indian Country, Sexual Abuse of a Minor or Ward in Indian Country, and
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 26, 2021
Christopher M. Wolpert
Clerk of Court
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Abusive Sexual Contact in Indian Country. The government requested he be
detained pending trial. The probation office prepared a pre-trial services report and
recommended Mr. Ewton be detained pending trial. Prior to the detention hearing, a
seventeen-count Indictment was returned charging him with six counts of Aggravated
Sexual Abuse, six counts of Sexual Abuse of a Minor or Ward, four counts of
Abusive Sexual Contact, and one count of Tampering with a Witness.
After the detention hearing, the magistrate judge ordered Mr. Ewton detained
pending trial because he was subject to a presumption of detention under 18 U.S.C.
§ 3142(e)(3)(E), and he had failed to rebut the presumption. The magistrate judge
also found that there was no condition or combination of conditions that could
reasonably assure the safety of the community if Mr. Ewton was released.
Mr. Ewton then filed a motion for revocation of the detention order, which the
government opposed. The district court conducted a de novo review of the detention
order, denied the motion for revocation, and affirmed the magistrate judge’s decision
that Mr. Ewton should be detained pending trial. Although the district court found
that he had overcome the presumption of detention, it found he would be a danger to
the community and a flight risk if he was released. The court also found that no
condition or combination of conditions would reasonably assure Mr. Ewton’s
appearance as required and the safety of the community. Mr. Ewton appeals the
district court’s order.
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II. Legal Framework
Under the Bail Reform Act, a defendant may only be detained pending trial 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). The court considers four factors
to determine whether there are release conditions that can ensure the defendant’s
appearance and the safety of the community. Those factors are:
(1) “the nature and circumstances of the offense charged, including whether
the offense . . . involves a minor victim”; (2) “the weight of the evidence
against the person”; (3) “the history and characteristics of the person”; and
(4) “the nature and 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).
If there is probable cause to believe that a defendant committed an offense
involving a minor victim under 18 U.S.C. § 2241 (Aggravated Sexual Abuse), as is
the case here, then a rebuttable presumption arises that there are no conditions that
will reasonably assure the appearance of the person as required and the safety of any
other person and the community. Id. § 3142(e)(3)(E). The burden of production on
the defendant to overcome the presumption is not a heavy one, but the defendant
must produce some evidence. United States v. Stricklin, 932 F.2d 1353, 1354-55
(10th Cir. 1991) (per curiam). Even if the presumption is overcome, the presumption
remains a factor in the district court’s detention decision. Id. at 1355. “However, the
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burden of persuasion regarding risk-of-flight and danger to the community always
remains with the government.” Id. at 1354-55.
III. Discussion
“We apply de novo review to mixed questions of law and fact concerning the
detention or release decision, but we accept the district court’s findings of historical
fact which support that decision unless they are clearly erroneous.” United States v.
Cisneros, 328 F.3d 610, 613 (10th Cir. 2003).
Mr. Ewton first argues that he presented sufficient evidence to overcome the
presumption of detention in § 3142(e)(3)(E). But we agree with the government that
this argument is “largely irrelevant here as the district court plainly found he
introduced sufficient evidence to meet his burden of production to overcome the
statutory presumption and the government has not challenged that conclusion on
appeal.” Aplee. Mem. Br. at 9. The presumption did, however, remain a factor that
the district court considered as part of its determination that Mr. Ewton poses a flight
risk and a danger to the community. Mr. Ewton does not assert that the district court
erred in considering the presumption as part of that determination.
He next argues that the government did not meet its burden of showing he was
a danger to the community by clear and convincing evidence. He asserts that in
addition to showing that the four factors in § 3142(g) support a finding of
dangerousness to the community, the government has an additional burden to show
that “imposed conditions would not be effective.” Aplt. Mem. Br. at 7 (emphasis
added) (citing United States v. Bustamante-Conchas, 557 F. App’x 803, 807
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(10th Cir. 2014)). And Mr. Ewton contends the government failed to carry its burden
because it “ignored [his] proposed conditions altogether.” Id. at 8 (emphasis added).
Bustamante-Conchas is unpublished and non-precedential, but even considering that
case, it is inapposite to the circumstances here. Bustamante-Conchas did not involve
a defendant’s appeal from a detention order as is the case here; instead, it involved
the government’s appeal from the district court’s order granting pre-trial release and
imposing certain conditions on release, see 557 F. App’x at 803-04. On appeal, the
government argued that the release conditions were insufficient, but we were not
persuaded by its argument and concluded that the district court did not err in
releasing the defendant subject to the restrictive conditions it had imposed. Id. at
806-07. Bustamante-Conchas does not support Mr. Ewton’s argument that the
government had an additional burden here of showing that his proposed conditions of
release would be ineffective. Moreover, contrary to his contention, the government
did not ignore Mr. Ewton’s proposed conditions; the government addressed them at
the detention hearing. See Aplee. Suppl. App., Vol. I at 27.
Mr. Ewton also asserts that the government failed to carry its burden on
dangerousness because it addressed only one of the four statutory factors and failed
to provide any evidence beyond the Indictment. But these assertions are not
accurate. The government addressed all four statutory factors in its brief in
opposition to the defendant’s motion to revoke the detention order. See Aplt. App. at
A33-A35; A37-A40. And the government also presented evidence other than the
Indictment. In a Notice of Submission of Supplemental Documents, it asked the
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district court to review the following in support of Mr. Ewton’s continued detention:
the Indictment, the Complaint and Affidavit, the pre-trial services report, the
detention hearing transcript, and reports of additional students and witnesses.
Finally, Mr. Ewton argues that the § 3142(g) factors weigh in favor of his
pre-trial release because he is not a danger to the community. We disagree.
First, the nature and circumstances of the offenses weigh in favor of detention.
As the district court explained, Mr. Ewton is “accused of multiple serious felony
offenses.” Aplt. App. at A47. These offenses involve allegations that he sexually
abused two minors who were his students at the time of the alleged criminal acts.
One of the victims reported that the abuse continued for four years and that same
victim reported that Mr. Ewton threatened her if she told anyone about what had
happened between them, which led to an additional charge for witness tampering.
Second, the weight of the evidence against Mr. Ewton is strong. Although he
argues that the weight of the evidence goes to dangerousness, not to guilt, he only
cites to a Sixth Circuit case for that proposition. But that out-of-circuit authority is
not persuasive; in our circuit, we consider the weight of the evidence as to the
criminal charges against the defendant. See Cisneros, 328 F.3d at 618. Here, the
district court explained that “[t]he information leading to Defendant’s arrest resulted
from a law enforcement investigation, which included multiple interviews of the
alleged victims, L.W. and P.D., and other students, interviews of the parents of
Defendant’s students, phone records of text messages between Defendant and L.W.,
and an interview of Defendant’s ex-wife.” Aplt. App. at A47.
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Although we agree with Mr. Ewton that the third factor weighs in favor of his
pre-trial release because he has no criminal history, this one factor does not outweigh
the other three factors. On the fourth factor, Mr. Ewton presents a danger to the
community based on the allegations that he sexually abused two of his students and
threatened one of them if she reported what happened to her. Although he proposed
that he could be released to live on his stepfather’s farm with an ankle monitor, the
government argued at the detention hearing that “putting him on a farm is not going
to ensure the safety of the community” because “[t]he community knew about this
and nothing happened and it continued for years and years and these victims have a
right to be safe at this point . . . .” Aplee. Suppl. App., Vol. I at 27.
Considering all the evidence and the § 3142(g) factors, Mr. Ewton has failed to
show that the district court erred in concluding that the government met its burden of
showing he poses a serious risk of danger to the community if he is released and that
no condition or combination of conditions could assure the safety of the community. 1
Accordingly, we affirm the district court’s detention order.
The government filed a Supplemental Appendix with an unsealed Volume I
and a Volume II that was provisionally sealed. The government filed a Motion to
1 Because Mr. Ewton has not shown error in the district court’s dangerousness
determination, we need not consider his argument that the government failed to carry
its evidentiary burden on risk of flight. Cf. United States v. Montalvo-Murillo,
495 U.S. 711, 717 (1990) (recognizing that the Bail Reform Act “directs a judicial
officer to detain a person charged, pending trial, if the Government has made the
necessary showing of dangerousness or risk of flight” (emphasis added)).
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Seal the documents contained in Volume II, arguing that the documents should be
sealed in this court because they were sealed in the district court.
We grant in part and deny in part the Motion to Seal. We grant the motion as
to the pre-trial services report and the reports from additional students and witnesses.
Those documents may remain in the sealed Volume II because they were sealed in
the district court and contain sensitive information, including the names of minors
who gave statements. The Indictment and Complaint and Affidavit were not sealed
in district court and so those documents should be filed unsealed. The government is
therefore directed to re-file its Supplemental Appendix with the Indictment and
Complaint and Affidavit in the unsealed Volume I and the pre-trial services report
and reports from additional students and witnesses in the sealed Volume II.
Entered for the Court
Per Curiam
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