United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
action is before the Court on the Government's Motion for
Detention. (Doc. 3). A detention hearing was held before the
undersigned Magistrate Judge on July 10, 2017. Present at the
hearing were the defendant, James D. Robertson, along with
his counsel of record Barry Dumas, Esq., and Assistant United
States Attorney Maria Murphy. Upon careful review of the
Court file, including the pretrial services report, along
with the evidence presented at the detention hearing, the
Court, for the reasons that follow, grants the
Government's motion to detain.
Robertson, age 53, is charged by way of a three count
indictment with receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2); access with intent to view
child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B), and possession of child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). Defendant has
no prior criminal history and reports that he has been on
disability since 2004. Defendant reports some side employment
in Marengo and Clarke Counties as a radio consultant. At the
time of the incidents made the basis of the indictment,
Defendant was working as an adult volunteer at Demopolis High
to the Bail Reform Act of 1984, 18 U.S.C. § 3142, a
defendant may be detained pending trial only after a hearing,
held pursuant to 18 U.S.C. § 3242(f), and upon a finding
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). A finding that the defendant is
either a flight risk or a danger to the community is
sufficient to detain the person pending trial. United
States v. King, 849 F.2d 485, 490 (11th Cir. 1988). In
making this determination, the Court considers the following
§ 3142(g) factors: (1) [t]he 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, 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, and record
concerning appearance at court proceedings; and (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 (4) the nature and
seriousness of the danger to any person or the community that
would be posed by the person's release. See 18
U.S.C. § 3142(g).
defendant is alleged to have committed a crime concerning the
exploitation of a child as referred to in Title 18, United
States Code, Section 3142(e), a statutory presumption
weighing against the defendant's pretrial release arises.
18 U.S.C. § 3142(e)(2), (f)(1); United States v.
Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985). Once
invoked, the defendant is obliged to produce evidence to
rebut that presumption. United States v. Niles, 874
F.Supp. 1372, 1374 (N.D.Ga. 1994) (citing United States.
v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990)). If
the defendant is successful, “the presumption does not
disappear, but rather becomes evidence to be weighed, along
with other evidence, as suggesting a risk of flight or risk
of danger.” Id.
United States moves for detention based on risk of flight and
danger. The undersigned will address each in turn.
United States argues that the Defendant is a risk of flight
on the grounds, in sum, that he had a gun in his possession
at the time of his arrest and he is on prescriptions for
anxiety and depression and a likely threat to
himself. Defendant is a lifelong resident of
Demopolis, Alabama and reports that he has been purchasing a
home there since 1995. Defendant's mother, Rita
Robertson, resides in Demopolis and testified that she has
regular contact with her son. Defendant is currently in
divorce proceedings with his wife and has one adult son from
that marriage. The undersigned finds that the Defendant has
rebutted the presumption as to the risk of flight issue.
United States also moves for detention on the grounds that
Defendant presents a danger to himself and to the community.
The weight of the evidence against Defendant is strong.
Detective Chris Mitchell testified that Defendant volunteered
at Demopolis High School in February 2017 at the time of the
incidents made the basis of the indictment. Detective
Mitchell testified that Defendant had sexual contact with a
16 year old female student and sent photographs of his
genitalia to the girl. He further testified that the
investigation revealed that he sent similar images of his
genitalia to an 18 year old female student. Detective
Mitchell further testified that four or five pornographic
videos were found in Defendant's possession and the
videos depicted a young child (7-9 years of age) either
asleep or unconscious being assaulted by an adult male.
Defendant's mental health, he advised that he is
currently on prescription medications for pain, anxiety and
depression. Although disputed by Mrs. Rita Robertson,
Detective Mitchell testified that the investigating police
officer from Demopolis, AL reported that Defendant's
mother expressed concerns about his mental
health. Detective Mitchell further noted that at
the time of his arrest Defendant had a gun in his possession.
mother was offered as a 3rd Party Custodian. She
testified that she is retired, lives alone and would allow
Defendant to reside with her pending the resolution of his
charges. Mrs. Robertson noted that she ...