Opinion
Case Number: CR 11-1695-PHX-JAT
09-08-2011
UNITED STATES OF AMERICA v. Benjapon Sakkarapope
ORDER OF DETENTION PENDING TRIAL
In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), a detention hearing has been held. I conclude that the following facts are established: (Check one or both, as applicable.)
[] by clear and convincing evidence the defendant is a danger to the community and require the detention of the defendant pending trial in this case.
[x] by a preponderance of the evidence the defendant is a flight risk and require the detention of the defendant pending trial in this case.
PART I -- FINDINGS OF FACT
[] (1) The defendant has been convicted of a (federal offense)(state or local offense that would have been a federal offense if a circumstance giving rise to federal jurisdiction had existed) that is
[] a crime of violence as defined in 18 U.S.C. § 3156(a)(4).
[] an offense for which the maximum sentence is life imprisonment or death.
[] an offense for which a maximum term of imprisonment of ten years or more is prescribed in __________________
[] a felony that was committed after the defendant had been convicted of two or more prior federal offenses described in 18 U.S.C. § 3142(f)(1)(A)-(C), or comparable state or local offenses.
Insert as applicable: (a) Controlled Substances Act (21 U.S.C. § 801 et seq.); (b) Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.); or (c) Section 1 of Act of Sept. 15, 1980 (21 U.S.C. § 955a).
[] (2) The offense described in finding 1 was committed while the defendant was on release pending trial for a federal, state or local offense.
[] (3) A period of not more than five years has elapsed since the (date of conviction)(release of the defendant from imprisonment) for the offense described in finding 1.
[] (4) Findings Nos. (1), (2) and (3) establish a rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of (an)other person(s) and the community. I further find that the defendant has not rebutted this presumption.
Alternative Findings
[] (1) There is probable cause to believe that the defendant has committed an offense
[] for which a maximum term of imprisonment of ten years or more is prescribed in __________________
[] under 18 U.S.C. § 924(c)
Insert as applicable: (a) Controlled Substances Act (21 U.S.C. § 801 et seq.); (b) Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.); or (c) Section 1 of Act of Sept. 15, 1980 (21 U.S.C. § 955a).
[] (2) The defendant has not rebutted the presumption established by finding 1 that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community.
Alternative Findings
[x] (1) There is a serious risk that the defendant will flee; no condition or combination of conditions will reasonably assure the appearance of the defendant as required.
[] (2) No condition or combination of conditions will reasonably assure the safety of others and the community.
[] (3) There is a serious risk that the defendant will (obstruct or attempt to obstruct justice) (threaten, injure, or intimidate a prospective witness or juror).
[] (4) ______________________________________________________
PART II -- WRITTEN STATEMENT OF REASONS FOR DETENTION
(Check one or both, as applicable.)
[] (1) I find that the credible testimony and information submitted at the hearing establishes by clear and convincing evidence as to danger that:___________________________
"The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the [detention] hearing." 18 U.S.C. § 3142(f). See 18 U.S.C. § 3142(g) for the factors to be taken into account.
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[x] (2) I find that a preponderance of the evidence as to risk of flight that:
[x] The defendant is not a citizen of the United States.
[x] The defendant, at the time of the charged offense, was in the United States illegally.
[x] If released herein, the defendant faces deportation proceedings by the Bureau of Immigration and Customs
[] Enforcement, placing him/her beyond the jurisdiction of this Court.
[] The defendant has no significant contacts in the United States or in the District of Arizona.
[] The defendant has no resources in the United States from which he/she might make a bond reasonably calculated to assure his/her future appearance.
[] The defendant has a prior criminal history.
[] The defendant lives and works in Mexico.
[] The defendant is an amnesty applicant but has no substantial ties in Arizona or in the United States and has substantial family ties to Mexico.
[] There is a record of prior failure to appear in court as ordered.
[] The defendant attempted to evade law enforcement contact by fleeing from law enforcement.
[] The defendant is facing a minimum mandatory of _________ incarceration and a maximum of __________________
[x] The defendant does not dispute the information contained in the Pretrial Services Report, except: Defense counsel proffered that Defendant had previously been released from Immigration detention.
[x] In addition:
Defendant has been in Immigration custody since 2010 from which custody he was presumably unable to secure release by posting a bond. Accordingly, there would be no practical purpose to a release from the Court's custody as he would remain detained albeit by a different department of the Executive. Moreover, release to ICE runs the risk that Defendant could effect his removal from the Court's jurisdiction by completing the travel documents and facilitating his removal. Although Defendant's removal appears to be its desired end, the government has now brought a criminal case and the Court must take appropriate actions to assure that the case may proceed in accordance with the Criminal Rules of Procedure and the Defendant's right to a speedy trial.
The Court incorporates by reference the findings of the Pretrial Services Agency which were reviewed by the Court at the time of the hearing in this matter.
PART III -- DIRECTIONS REGARDING DETENTION
The defendant is committed to the custody of the Attorney General or his/her designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
PART IV -- APPEALS AND THIRD PARTY RELEASE
IT IS ORDERED that should an appeal of this detention order be filed with the District Court, it is counsel's responsibility to deliver a copy of the motion for review/reconsideration to Pretrial Services at least one day prior to the hearing set before the District Court.
IT IS FURTHER ORDERED that if a release to a third party is to be considered, it is counsel's responsibility to notify Pretrial Services sufficiently in advance of the hearing before the District Court to allow Pretrial Services an opportunity to interview and investigate the potential third party custodian.
David K. Duncan
United States Magistrate Judge