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United States v. Fenn

United States District Court, E.D. Virginia, Alexandria Division

April 15, 2016

ROBERT FENN, Defendant.



This matter came before the Court on Defendant Robert Fenn’s (“Fenn”) amended motion for conditional release pending a new trial. [Dkt. 167.] The Government opposed Fenn’s release under any conditions. (Gov’t Response [Dkt. 168].) After considering the parties’ written arguments and conducting a detention hearing at which Fenn’s mother credibly testified as to her ability and willingness to serve as a custodian, the Court granted Fenn’s motion from the bench. This opinion memorializes and supplements that ruling.

I. Background

In December 2012, the grand jury returned an indictment against Fenn for one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). United States Magistrate Judge Buchanan conducted a pretrial detention hearing and granted Fenn’s motion to be released under the custodianship of his mother. (See Order [Dkt. 10].) The conditions of release confined Fenn to house arrest with GPS monitoring and restricted his access to computers, video game consuls, internet-capable phones, other data-sharing devices, and the internet generally. He was also prohibited from having any unapproved or unaccompanied contact with minors. (Id.) Fenn fully complied with these and other conditions during the nearly four months between his arrest and his April 2013 trial.

A jury found Fenn guilty as to both counts. The Court sentenced Fenn to 120 months imprisonment for each count, to run concurrently, followed by a twenty year term of supervised release. Fenn then unsuccessfully appealed his conviction and twice unsuccessfully petitioned this Court for a new trial. United States v. Fenn, 554 F. App’x 133 (4th Cir. 2014); United States v. Fenn, No. 1:12-cr-510, 2014 WL 1338672 (E.D. Va. Apr. 3, 2014), aff’d 584 F. App’x 114 (4th Cir. 2014); United States v. Fenn, No. 12-cr-510, 2013 WL 1968156 (E.D. Va. May 9, 2013). Fenn then moved under 28 U.S.C. § 2255 to vacate or set aside his conviction based on ineffective assistance of trial counsel. The Court granted this motion on March 23, 2016, after allowing for discovery and conducting an evidentiary hearing. Fenn v. United States, No. 1:12-cr-510, 2016 WL 1161441 (E.D. Va. Mar. 23, 2016); Fenn v. United States, No. 12-cr-510, 2015 WL 3868583 (E.D. Va. June 23, 2015). The Court ordered Fenn to be unconditionally released from custody, unless, within 60 days, the Government initiates trial proceedings against him. Fenn, 2016 WL 1161441 at *1, 10.

On April 6, Fenn moved to be released under restrictions pending the Government’s initiation of new trial proceedings. On April 12, the Government filed an opposition to the motion, arguing that Fenn should remain detained pending a new trial. The Court heard oral argument from the parties and testimony from Fenn’s mother at a hearing on April 14, 2016.

II. Standard of Review

The Bail Reform Act of 1984 (the “Act”), 18 U.S.C. § 3141 et seq., defines the limited circumstances under which a defendant may be detained pending trial. The Act permits detention when the Government presents clear and convincing evidence “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). Additionally, detention is permitted if the Government proves by a preponderance of the evidence that no conditions will reasonably assure the defendant’s appearance at trial. See 18 U.S.C. § 3142(e).

The analysis is slightly different when there is probable cause to believe that the defendant has committed an offense involving a minor victim. In those cases, a rebuttable presumption arises that no conditions will reasonably assure the defendant’s appearance and the safety of the community and others. See 18 U.S.C. § 3142(e)(3)(E). The defendant may rebut that presumption by coming forward with evidence to suggest that the presumption is unwarranted in his particular case, i.e. satisfies his burden of production. See United States v. Boyd, 484 F.Supp. 2d. 486, 488 (E.D. Va. 2007). If the defendant presents such evidence, the burden shifts back to the government to prove that detention is justified due to risk of flight or risk of future dangerousness, as described above.

The Act provides several factors for courts to consider when weighing whether the Government has proven detention is warranted. Those factors include: (1) the nature and circumstances of the offenses charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant, including family ties, the defendant’s character, ties to the community, and criminal history; and (4) the nature and seriousness of the danger releasing the defendant would pose to any person and the community. See 18 U.S.C. § 3142(g).

III. Analysis

All parties agree that the offense charged in Fenn’s case gives rise to the rebuttable presumption that detention is warranted. The indictment establishes probable cause that Fenn received child pornography in violation of 18 U.S.C. § 2252(a)(2), which triggers the presumption. See 18 U.S.C. § 3142(e)(3)(E); see also United States v. Hite, 76 F.Supp. 3d 33, 36 n.4 (D.D.C. 2014) (noting indictment can establish probable cause). The evidence presented at trial regarding the presence of known child pornography on Fenn’s various computer devices in his password-protected account and computer folders affirms that probable cause exists, and Fenn does not argue otherwise.

None-the-less, Fenn has rebutted the presumption that detention is necessary. The procedural posture of this case allows the Court to rely on Fenn’s prior compliance with conditions of release as compelling evidence that there are conditions that will reasonably assure his presence at trial and eliminate the risk of harm. See Hite, 76 F.Supp. 3d at 42 (finding presumption rebutted namely because defendant previously complied with conditions of release on same charges). Furthermore, Fenn’s mother, Catherine Norris (“Norris”), testified at the detention hearing that she is willing and able to serve as a third-party custodian. The Court found Norris credible based on her detention-hearing testimony and her effective custodianship during Fenn’s prior release on bond. The Court finds additional support that appropriate conditions of release exist because of Fenn’s ties to the community, his lack of criminal history, his stable psychological history, his meager financial resources, and the unlikelihood of additional harm resulting to others or the community.

The following consideration of the section 3142(g) factors affirms the conclusion that Fenn rebutted the presumption that detention is required and those factors also demonstrate the Government has not ...

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