Opinion
CRIMINAL NO. SA-17-CR-960 (OLG) EDCA MAG NO: 18-MJ-00040-SKO
03-13-2018
UNITED STATES OF AMERICA, Plaintiff, v. MIGUEL GARCIA (4), Defendant.
JOHN F. BASH UNITED STATES ATTORNEY RUSSELL D. LEACHMAN Assistant U.S. Attorney Texas Bar # 12069710 601 NW Loop 410, Suite 600 San Antonio, Texas 78216 (210) 384-7100
GOVERNMENT'S APPEAL OF AND MOTION TO REVOKE ORDER SETTING BOND, MOTION FOR DE NOVO DETENTION HEARING AND MOTION FOR STAY OF ORDER SETTING BOND
Comes now the United States of America, by and through the United States Attorney for the Western District of Texas and the undersigned Assistant United States Attorney, and files this its Government's Appeal of and Motion to Revoke Order Setting Bond, Motion for de novo Detention Hearing, and Motion for Stay of Order Setting Bond and for cause, would respectfully show unto the Court the following:
I.
The Government moves this Court to revoke the Order Setting Bond entered by United States Magistrate Judge Shelia K. Oberto on March 12, 2018, denying the Government's Motion to Detain Without Bail the Defendant, MIGUEL GARCIA, in the above styled and numbered cause, and to grant the government a de novo hearing for detention pending trial, pursuant to Title 18 U.S.C. Section 3145, and to continue to detain and hold the Defendant without bail, pursuant to Title 18 U.S.C. Section 3142 (e) and (f). Additionally, the Government moves this Court to immediately stay the execution of Magistrate Judge Shelia K. Oberto's Order Setting Bond for the Defendant, MIGUEL GARCIA, pending this Court's decision concerning revocation of the bond and for detention of the Defendant without bond.
II.
PROCEDURAL BACKGROUND
Defendant MIGUEL GARCIA was arrested on or about March 8, 2018, and the Government filed a Motion to Detain the Defendant without Bond based on information that the Defendant was a substantial flight risk, a danger to the community and/or will obstruct justice.
On February 21, 2018, a Grand Jury sitting in the Western District of Texas returned a three count Second Superseding Indictment, in cause number SA-17-CR-960-OLG, against Defendant, MIGUEL GARCIA, and three co-defendants. The Defendant is charged with the following: Count I: Conspiracy to Possess with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. 846 and 841(a)(1)(A); and Count II- Possession with Intent to Distribute 500 grams or more of methamphetamine under 21 U.S.C. §841(a)(1)(A). On March 12, 2018, a detention hearing was held before the Honorable United States Magistrate Judge Shelia K. Oberto. The Government's basis for detention includes, but is not limited to the following:
• The nature of the offense charge, a drug offense involving over 500 grams of meth. This is a presumptive detention case carrying a statutory penalty of 10 years to life, and the Government's evidence in the case is very strong. The Defendant was intercepted in consensual calls concerning the pickup of more than 5 kilograms of methamphetamine, and an additional amount was found in his ;
• The Defendant's conduct is extensive and includes activities in jurisdictions across the United States. As such, the Defendant constitutes a significant risk of flight and danger to the community;
• The Defendant does not have significant ties to the Western District of Texas.Magistrate Judge Shelia K. Oberto orally denied the Government's motion to detain without bond the Defendant and set a bond at $50,000.00.
III.
ARGUMENT AND AUTHORITIES
The District Court's review of a release order is de novo. U.S. v. Thibodeaux, 663 F.2d 520 (5th Cir. 1981). "Moreover, the rule of de novo determination by the district court applies not only when the accused challenges the magistrate's order, but also when the Government does, as it is authorized to do so by section 3145(a)(1)." United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985), citing United States v. Delker, 757 F.2d 1390, 1394 (3rd Cir. 1985).
The Government moves to detain the Defendant MIGUEL GARCIA on the following grounds:
1. There is a serious risk that MIGUEL GARCIA will flee the jurisdiction of the Court.
2. There are no conditions or combination of conditions which will reasonably assure the appearance of MIGUEL GARCIA at future court settings.
3. There are no conditions or combination of conditions which will reasonably assure the safety of the community should Defendant MIGUEL GARCIA be released on bond.
A determination that there are no conditions or combinations of conditions which will reasonably assure the appearance of the defendant at future court settings is based on a preponderance of the evidence. United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985). Pursuant to Title 18, United States Code, Section 3142(f)(2)(B), a determination that the defendant is a danger to the community must be supported by clear and convincing evidence. Id.
The Government has requested a transcript of the detention hearing; however, as of the time of the filing of this Motion, a transcript has not been completed. Upon completion of the transcript, the Government will submit the same to this Court.
Because the transcript may take some time to prepare and because the Government believes that the Defendant MIGUEL GARCIA will immediately post the bonds and flee the jurisdiction of this Court, the government requests an immediate stay of Magistrate Judge Shelia K. Oberto's Order Setting Bond for MIGUEL GARCIA.
The Government maintains that the charges are extremely serious and given the evidence of MIGUEL GARCIA's risk of flight; the evidence of Defendant MIGUEL GARCIA's danger to the community, the detention of MIGUEL GARCIA is clearly warranted.
WHEREFORE, premises considered, the Government respectfully prays the Court to grant the Government's Motion in all respects, to Stay and revoke the Order Setting Bond, to hold and detain the Defendant without bail pending the de novo detention hearing, Order that the Defendant be transported to the Western District of Texas for consideration of this matter, and to thereafter detain the Defendant without bail.
Respectfully submitted,
JOHN F. BASH
UNITED STATES ATTORNEY
BY: /s/
RUSSELL D. LEACHMAN
Assistant U.S. Attorney
Texas Bar # 12069710
601 NW Loop 410, Suite 600
San Antonio, Texas 78216
(210) 384-7100 ORDER
On this date, came on to be considered the Government's Appeal of Order Setting Bond, Motion for de novo Detention Hearing, and Motion for Stay of Order Setting Bond. Having considered the Motion, the Court is of the opinion that the Motion is meritorious and should be GRANTED.
IT IS THEREFORE ORDERED that the Order Setting Bond is stayed.
IT IS ORDERED that the Order Setting Bond is hereby revoked.
IT IS ORDERED that the Motion for a de novo Detention Hearing is granted and is set for 29th day of March, 2018, at 10:30 A.M. before the Honorable Orlando L. Garcia at the United States Courthouse, 655 Cesar E. Chavez Blvd, San Antonio, Texas, Third Floor Courtroom.
IT IS FURTHER ORDERED that the United States Marshal deliver the Defendant to the Western District of Texas, San Antonio Division for further proceedings consistent with this ORDER.
SIGNED AND ENTERED this the 13 day of March, 2018.
/s/_________
HON. ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE