IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, : Case No. 2:13-cr-193(1) 

 

v. : JUDGE PETER C. ECONOMUS 

 

Rian R. Robb, : Magistrate Judge Kemp

Defendant. :

 

 OPINION AND ORDER

The defendant, Rian R. Robb, accompanied by counsel,

appeared for a detention hearing on September 12, 2013. After

taking testimony, the Court concluded that the defendant should

be released on conditions pending trial. This order explains

why.

Defendant was indicted on August 20, 2013 and charged with

unlawful possession of a firearm by a convicted felon. That

charge does not carry with it a presumption of detention. The

United States relied on testimony at the detention hearing and

information in the Pretrial Services report in support of its

request for detention. The Court judged the United States’

request under this standard: 

Under 18 U.S.C. §3142(f), a detention hearing may be

held in a case involving, inter alia, a serious risk that the

person to be detained will obstruct or attempt to obstruct

justice, or threaten, injure, or intimidate, or attempt to

threaten, injure, or intimidate, a prospective witness or

juror. Such a hearing may also be held if there is a serious

risk that the person sought to be detained will flee, and it must

be held if the defendant is charged with certain crimes including

the one involved in this case. At the hearing, it is the task of

the presiding judicial officer to determine whether any condition

or combination of conditions of release "will reasonably assure

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the appearance of the person as required and the safety of any

other person and the community...."

 Following the hearing, "if ... 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

any other person and the community, such judicial officer shall

order the detention of the person before trial." Id. If

detention is based upon a finding that no condition or

combination of conditions will reasonably assure the safety of

any other person in the community, such a finding must be

supported by clear and convincing evidence. Proof that the

person sought to be detained is a serious risk of flight must be

by a preponderance of the evidence.

 18 U.S.C. §3142(g) requires the judicial officer to

consider available information concerning (1) the nature and

circumstances of the offense charged, including whether the

offense is a crime of violence or involves a narcotic drug;

(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. See, e.g.,

United States v. Arvanitis, 667 F. Supp. 693 (N.D.Ill.

1987). Detention may be ordered based upon a finding that

the defendant is likely to continue to engage in criminal

activity which poses a threat either to the community or to

the safety of particular persons, and such circumstances are

not limited to proof that the defendant poses a serious risk

either to obstruct justice or to intimidate or injure a

prospective witness or juror. See, e.g., United States v.

Daniels, 772 F.2d 382 (7th Cir. 1985); United States v.

Yeaple, 605 F.Supp. 85 (M.D.Pa. 1985).

Special Agent Paris Wilson of the Bureau of Alcohol,

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Tobacco, Firearms and Explosives testified at the hearing. He

explained the circumstances behind the charge - that defendant

was pulled over by Reynoldsburg Police for suspected OMVI, that

he fled, that at some point the officers lost sight of him, that

they retraced his steps the day after the arrest, and that they

found a gun somewhere along the escape route. DNA has been

obtained from both the gun and the defendant, but testing is not

yet complete. 

Agent Wilson was also asked about a drug distribution ring

in Muskingum County which he has been investigating since 2012. 

He stated that defendant is the suspected leader of this ring. 

However, he did not identify a single fact or witness statement

in support of his testimony on this point, and the Court

therefore gave it no weight.

The only other evidence before the Court was the Pretrial

Services report and one exhibit offered by the United States. 

The report shows that defendant is thirty years old, is a

lifelong resident of the central Ohio area, has a stable

residence, could be subject to location monitoring if released,

has been employed for the past year, and has some history of drug

use (most recently marijuana), having completed drug treatment

several years ago. His criminal record was emphasized by the

United States in its argument in favor of detention. The

significant portions of that record are convictions from 2005 on

drugs and weapons charges and a 2008 conviction for accessory

after the fact to murder. The exhibit submitted by the United

States relates to this last conviction and shows that defendant

was originally charged as the principal offender but that he

later pleaded guilty to being an accessory after the fact. He

received a five-year sentence but was released in 2010. Since

then, his only conviction is for reckless operation.

On this record, the Court does not view the question of

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detention or release as a particularly close one. 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. Danger has simply not

been proved by clear and convincing evidence.

There is even less evidence of a risk of flight. 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. That is also what the Pretrial

Services Officer recommends, under conditions which include drug

testing and treatment, pretrial supervision, and location

monitoring. Those are sufficient, in the Court’s view, to guard

adequately against any risk of flight or non-appearance. For

these reasons, the Court concluded that the defendant’s release

on the conditions recommended by Pretrial Services is

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appropriate.

The United States requested a stay of this order. The order

is stayed until 5:00 p.m. on Tuesday, September 17, 2013, to

permit the United States to file an appeal. If it does so, the

stay is extended until the conclusion of the appeal. If it does

not, the defendant shall be brought before the Court on September

18, 2013 for purposes of issuing the appropriate order setting

conditions of release.

/s/ Terence P. Kemp 

United States Magistrate Judge

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