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United States v. Risley

United States District Court, M.D. North Carolina

May 31, 2017

UNITED STATES OF AMERICA
v.
ROBERT HOSMER RISLEY

          MEMORANDUM OPINION AND ORDER

          L. Patrick Auld United States Magistrate Judge

         A grand jury for this District indicted the defendant for receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), and transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). (Docket Entry 1.) The case thereafter came before the Court for a hearing on an oral motion for detention by the United States, pursuant to 18 U.S.C. § 3142(f)(1)(A), [1] after which the Court took the matter under advisement. (See Docket Entry dated May 5, 2017.) The Court now enters this written order of detention (as required by 18 U.S.C. § 3142(i)(1)), because clear and convincing evidence establishes that no available release conditions reasonably could assure the safety of the community.

         BACKGROUND

         A United States Probation Officer prepared a report regarding the defendant's history, residence, family ties, employment, financial resources, health (including as to mental health and substance abuse issues), and prior record. Both parties had an opportunity to review that report before the detention hearing. The defendant conceded the accuracy of the factual information in the report, with minor clarifications regarding his military and employment history and his answer regarding mental health treatment, [2] and was “afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear[ed] at the hearing, and to present information by proffer or otherwise, ” 18 U.S.C. § 3142(f). In that regard, the defendant (through counsel) presented copies of his release order from state court on related charges, as well as medical appointment information, proffered a release plan, and cross-examined the law enforcement officer called by the United States.

         DISCUSSION

         Given the nature of the charges in this case, “[s]ubject to rebuttal by the [defendant], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community, ” 18 U.S.C. § 3142(e)(3).[3] “[T]he presumption operate[s] at a minimum to impose a burden of production on the defendant to offer some credible evidence contrary to the statutory presumption.” United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (emphasis omitted).[4]

         “Even when a defendant satisfies his burden of production, however, ‘the presumption favoring detention does not disappear entirely, but remains a factor to be considered among those weighed by the district court.' The presumption remains as a factor because it is not simply an evidentiary tool designed for the courts. Instead, the presumption reflects Congress's substantive judgment that particular classes of offenders should ordinarily be detained prior to trial.” United States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010) (citation omitted) (quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)); accord United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008); United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003); United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991); United States v. Hare, 873 F.2d 796, 798-99 (5th Cir. 1989); United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986); United States v. Medina, 775 F.2d 1398, 1402 (11th Cir. 1985).[5]

         In resolving the issue of release or detention, the Court has considered, along with the statutory presumption, the following statutorily prescribed factors: “(1) the nature and circumstances of the offense[s] charged, including whether the offense[s are] crime[s] of violence . . . or involve[] a minor victim. . .; (2) the weight of the evidence against the [defendant]; (3) the history and characteristics of the [defendant] . . .; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the [defendant's] release.” 18 U.S.C. § 3142(g). Based on the record before it, the Court makes the following findings of fact and/or conclusions of law:

         1) as reflected by the above-discussed presumption of detention, the applicable penalties, and the language of the Bail Reform Act, the offenses charged against the defendant are serious in nature and involved circumstances (detailed below) that endangered the community, see, e.g., United States v. Morace, 594 F.3d 340, 350 (4th Cir. 2010) (observing that Congress has made clear its “view that child pornography crimes are serious offenses” (internal quotation marks and brackets omitted)); United States v. Goff, 501 F.3d 250, 258-59 (3d Cir. 2007) (explaining that “[c]hildren are exploited, molested, and raped” and thus suffer “injuries and the taking of their innocence” due to the market for child pornography, and rejecting effort “to downplay the nature and seriousness of [child pornography offense] . . . [by] implying that [it] was a victimless crime because viewing the pornography was ‘a solitary, private activity of short duration driven by [offender's] curiosity'”); United States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987) (“We find that a possible sentence of ten years is also sufficient indication that the offense is serious.”); United States v. Church, 701 F.Supp.2d 814, 820-22 (W.D. Va. 2010) (cataloging grievous harms caused by child pornography offenses); 18 U.S.C. § 2252A(b)(1) (imposing minimum sentence of five years' imprisonment and maximum sentence of twenty years' imprisonment for violations of Section 2252A(a)(1) or (2)), 3142(g)(1) (identifying issue of “whether the offense is a crime of violence . . . or involves a minor victim” as significant to assessment of risks relevant to detention decision), 3156(a)(4)(C) (defining “‘crime of violence'” as used in Section 3142 as including offenses under Section 2252A(a)(1) and (2));

         2) the weight of the evidence against the defendant appears very strong in that:

A) law enforcement officers received a report from the National Center for Missing and Exploited Children that an individual uploaded child pornography to (i) Chatstep, an online messaging system, using the username “Grandpa, ” as well as (ii) Skype, an online messaging and videoconferencing system, using the “bill.bill604” username;
B) follow-up investigation revealed that the Internet Protocol (“IP”) address[6] used by that individual was assigned to the defendant;
C) on August 24, 2016, law enforcement officers conducted a knock and talk at the defendant's residence, during which he admitted to possessing child pornography and owning the “bill.bill604” account;
D) the defendant consented to a search of the computers in the residence, which search revealed child pornography on his laptop, prompting officers to seize the laptop; and E) subsequent examination of the laptop revealed 320 images and 14 videos of child pornography, as well as numerous Skype chats (copies of some of which the United States introduced at the detention hearing) in which the defendant, using variations of his ...

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