Opinion
Case No. 2:13-cr-193
2013-09-24
UNITED STATES OF AMERICA, Plaintiff, v. RIAN R. ROBB, Defendant.
Judge Peter C. Economus
MEMORANDUM OPINION AND ORDER
This matter is before the Court for consideration of the Government's Motion for Review and Revocation of Release Order, filed pursuant to 18 U.S.C. § 3145(a), in which the Government requests that Defendant Rian Robb be detained without bond pursuant to 18 U.S.C. § 3142(e). (Dkt. 22.) For the reasons that follow, the Court DENIES the Government's motion.
I. Background
This case arose out of a March 31, 2012 traffic stop in Reynoldsburg, Ohio for suspected operation a vehicle under the influence of alcohol or drugs. According to the Government, Defendant fled the Reynoldsburg police, and while fleeing, threw down a Glock, 9mm handgun that he had been carrying in his waistband. Defendant was later apprehended, the firearm was located, and DNA material on the firearm was later matched to Defendant. Defendant was in possession of a small amount of marijuana, and officers discovered a bag containing a black ski mask and black gloves inside Defendant's vehicle. Reynoldsburg Police also discovered that Robb was under investigation by a state, local, and federal Task Force investigating narcotics distribution in and around Muskingum County, Ohio. (Dkts. 22, 24; Tr. 9-11.)
On August 20, 2013, an indictment was filed charging Defendant with unlawful possession of a firearm by a convicted felon. On September 12, 2013, Magistrate Judge Terence P. Kemp conducted a detention hearing and concluded that Defendant should be released on conditions pending trial, subject to a stay to permit the Government to file an appeal. (Dkt. 21.) The Government filed its appeal on September 17. (Dkt. 22.) However, the case was referred back to the Magistrate Judge to hear new evidence presented by the Government on September 20. (Dkts. 24, 26.) The Magistrate Judge held a hearing on September 23, but did not amend his release order. This matter is now back before the Court on the Government's motion. (Dkt. 22.)
II. Analysis
The Court reviews the release order of a Magistrate Judge de novo. See United States v. Brown, No. 2:08:106, 2008 WL 2098070 (S.D. Ohio May 16, 2008). Defendant is charged with unlawful possession of a firearm by a convicted felon, a charge which does not carry a presumption of detention. See 18 U.S.C. § 3142(e)(2). In such cases, detention is appropriate if "clear and convincing evidence" shows that "no condition or combination of conditions will reasonably assure the safety of any other person and the community," or if a preponderance of the evidence shows that Defendant is a serious risk of flight. U.S.C. § 3142(e)(1) and (f); United States v. Kirk, 992 F.2d 1218 (6th Cir. 1993).
"[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 Court must consider the following factors:
(1) the nature and circumstances of the offense charged, including whether the offense . . . involves . . . a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person [as to dangerousness, not as to guilt];
(3) the history and characteristics of the person, including--
(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,
18 U.S.C. § 3142(g); United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010) (on weight of the evidence factor).and record concerning appearance at court proceedings; and(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
(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
A. Danger to the Community
Detention is appropriate if "clear and convincing evidence" shows that "no condition or combination of conditions will reasonably assure the safety of any other person and the community." 18 U.S.C. § 3142(f).
At the September 12, 2013 hearing before the Magistrate Judge, Special Agent Paris D. Wilson of the Bureau of Alcohol, Tobacco, and Firearms and Explosives testified that he initiated an investigation of a narcotics trafficking ring in Zanesville, Ohio in January of 2012. (Tr. 5.) Wilson testified that his sources and confidential informants advised him that Defendant was one of the leaders of that ring. (Id. at 5-7.) According to Wilson, the decision to charge Defendant in federal court was delayed in order to avoid jeopardizing the ongoing investigation of the narcotics trafficking ring. (Id. at 7-8.)
Defendant's criminal history is as follows. In 2001, at age 18, he was convicted of criminal trespass and menacing. For conduct in 2002, he was convicted (in 2003) of transport of a firearm in a vehicle and drug paraphernalia; a drug abuse charge was dismissed. For conduct in 2003, he was convicted (in 2005) of possession of crack cocaine. In 2005, he was convicted of carrying a concealed weapon or illegal possession of a weapon, having a weapon under disability, and possession of drugs. For conduct on December 31, 2005, Defendant was convicted (in 2008) of accessory after the fact to murder, originally charged as murder with a firearm. For conduct in 2007, he was convicted (in 2008) of possession of drugs. A 2008 charge of carrying a concealed weapon was dismissed. In 2012, he was convicted of reckless operation, originally charged as operating a vehicle impaired, and a charge of failure to display a license plate was dismissed. (Tr. 15, Gov't Ex. 1; Pretrial Svcs. Report 3.)
The Pretrial Services Officer indicated in her report that the following factors indicate that Defendant poses a danger to the community: nature of the instant offense, prior arrests and convictions, substance abuse history, violent behavior history, history of weapons use, and criminal history. However, the Pretrial Services Officer concluded that the recommended conditions of release would be adequate to address the danger to the community. (Pretrial Svcs. Report 4.) The Magistrate Judge agreed, stating the following:
The United States' argument relating to danger to the community was based in part on the possibility that defendant is the ringleader of a drug conspiracy, but it offered no credible proof on that issue, and certainly not clear and convincing evidence. The accessory to murder conviction is troubling, as is the possibility that defendant possessed a weapon illegally, but the incident involved in this case happened a year and a half ago, and there is no evidence of any criminal activity on defendant's part since then. While firearm possession by a convicted felon does pose a danger to the community, Congress has chosen not to create a presumption against release in such cases, and placed the burden on the United States to prove danger by clear and convincing evidence. Given that the defendant was not actually in possession of the weapon when arrested for the traffic offense, and that testing of the DNA is not yet complete, the evidence on this charge is not the strongest the Court has ever seen.(Dkt. 21 at 4.) As noted above, the DNA material on the weapon has since been matched to Defendant.
The charge of possession of a firearm by a felon, supported by DNA evidence, lends support to a finding that Defendant may be dangerous to the community. His criminal history, specifically the conviction for accessory after the fact, is also troubling, as the Magistrate Judge stated in his order. The Government presented no admissible evidence that Defendant is one of the leaders of a narcotics trafficking ring, and the Magistrate Judge found that the Government "offered no credible proof on that issue." (Dkt. 21 at 4.) While "[t]he 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), the Court finds that Special Agent Wilson's testimony does not rise to the level of "clear and convincing evidence" of Defendant's dangerousness. Considering all of the evidence, the Court finds that the Government has not presented clear and convincing evidence that no conditions of release would reasonably assure the safety of the community. 18 U.S.C. § 3142(f).
B. Flight Risk
Detention is also appropriate if a preponderance of the evidence shows that Defendant is a serious risk of flight. 18 U.S.C. § 1342(e); United States v. Kirk, 992 F.2d 1218 (6th Cir. 1993).
The Government asserts that Defendant's flight risk is demonstrated by his flight following the traffic stop in March, his failure to appear for a court date as to the murder indictment he originally faced in 2008, and his criminal history. (Dkt. 22 at 3-4; Pretrial Svcs. Report 3.)
The Pretrial Services Officer opined that the following factors indicate that Defendant may pose a risk of nonappearance: substance abuse history, history of failure to appear, unverified employment, and criminal history. However, she concluded that the recommended conditions of release would be adequate to address the danger to the community. (Pretrial Svcs. Report 3-4.)
The Magistrate Judge agreed with the Pretrial Services Officer's recommendation, explaining as follows:
Defendant did fail to appear on one occasion in the murder case, but those charges were filed in South Carolina, a community where he had no ties. His choice to flee when stopped for OMVI was not a wise one, but it does not persuade the Court that even with location monitoring defendant is at risk not to appear in Court. Other pertinent factors such as community ties, a stable residence, and employment favor release.(Dkt. 21 at 4.)
The Court finds that Defendant's flight following the traffic stop in March weighs in favor of a finding that Defendant poses a flight risk. That Defendant is under investigation for a drug conspiracy also may increase Defendant's flight risk. However, as the Magistrate Judge found, Defendant's "community ties, a stable residence, and employment" weigh against a finding of flight risk. (Dkt. 21 at 4.) Considering all of the evidence, the Court agrees with the Magistrate Judge and Pretrial Services Officer that location monitoring "will reasonably assure the appearance of [Defendant] as required." 18 U.S.C. § 1342(e).
III. Conclusion
Because the Court finds that the Government has not shown by "clear and convincing evidence" that "no condition or combination of conditions will reasonably assure the safety of any other person and the community," and has not shown by a preponderance of the evidence that Defendant is a serious risk of flight, the Court hereby DENIES the Government's Motion (Dkt. 22) and AFFIRMS the decision of the Magistrate Judge.
IT IS SO ORDERED.
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UNITED STATES DISTRICT JUDGE