Opinion
NO. 1:09-CR-00093.
October 22, 2009
OPINION AND ORDER
This matter is before the Court on Defendant's Motion for Conditions of Release (doc. 40), and the government's Response in Opposition (doc. 43). The Court held a hearing on this matter on Thursday, October 22, 2009. For the reasons indicated herein, the Court GRANTS Defendant's Motion under the conditions outlined in this Order.
Defendant was convicted by a jury on October 1, 2009, for violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, and is currently held in custody pending sentencing. At the hearing Defendant indicated he has an apartment with a phone line such that he could be subject to electronic monitoring. Defendant indicates he has family ties, indeed, all of his family is in Cincinnati, where he grew up. Defendant argued that his last felony arrest was over twenty years ago, testified that he has heart problems and arthritis, and indicated he needs medical treatment he could receive at the Veteran's Administration. Defendant indicates he will register in accordance with SORNA immediately upon release.
The government opposes Defendant's motion, arguing that Defendant's lack of registration shows he has a disrespect for the law, and arguing as recently as May 2009 Defendant had a DUI. The government argues that Defendant failed to appear on such charge as recently as July 2009. The government indicates that testimony at trial has shown Defendant has lived all over the country, and argues Defendant presents a risk of flight.
In considering Defendant's motion, the Court must evaluate whether there is clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety of the community. 18 U.S.C. § 3143(a). Moreover, should the Court find a substantial likelihood that a motion for a new trial or for acquittal will be granted, the Court may order the release of a convicted Defendant. Id.
Having reviewed this matter, the Court finds clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety of the community. Defendant's felony offenses are old. Defendant's family connections to Cincinnati are strong. Defendant has health issues and is on disability income. Defendant indicated at the hearing that he would submit to random drug and alcohol testing.
The Court further notes that it understands the issue of the retroactivity of SORNA is currently pending before the Supreme Court. The Court understands that the Supreme Court's forthcoming decision could impact Defendant's conviction in this matter.
Under these conditions, the Court finds it appropriate to GRANT Defendant's Motion, and allow him to be electronically monitored at his home pending sentencing, so long as he signs an unsecured $10,000.00 O.R. bond and registers immediately with the Hamilton County Sheriff's Department as a sex offender. Specifically the Court requires the following conditions:
1) Defendant shall participate in a home detention program with electronic monitoring under the guidance and supervision of the Pretrial Services Officer. Defendant shall pay all or part of the cost of the program based on his ability to pay as determined by such Officer. The following release privileges shall be granted: employment, education, religious services, medical, substance abuse treatment, mental health treatment, attorney visits, court appearances, court-ordered obligations or other activities as pre-approved by the Pretrial Services Officer.
2) Defendant's travel is restricted to the Southern District of Ohio.
3) Defendant must avoid all contact with the alleged victim of the crime and with any potential witness who may testify concerning the offense.
4) Defendant must report on a regular basis to the U.S. Pretrial Services Officer on a schedule determined by the Pretrial Officer.
5) Defendant must comply with a curfew as specified by Pretrial Services.
6) Defendant must refrain from possessing a firearm, destructive device or other dangerous weapon.
7) Defendant must refrain from the use of alcohol and any use or possession of a narcotic drug and any other controlled substance unless same is prescribed by a licensed medical practicioner.
8) Defendant must submit to random drug and alcohol testing under the guidance of Pretrial Services.
The Court further ORDERS the parties to submit forthwith, consistent with its request at the hearing, briefing concerning the pending Supreme Court matter, and the Sixth Circuit's most recent SORNA jurisprudence, so as to assist the Court in its evaluation of this matter.
SO ORDERED.