Opinion
No. 01-10056-MLW
May 31, 2001
MEMORANDUM AND ORDER ON GOVERNMENT'S MOTION FOR DETENTION
The above-named defendants (and others) were arrested on the basis of an indictment charging distribution of heroin and conspiracy to do so. On the occasion of their first appearance, the government moved for pretrial detention on the grounds of danger to the community and risk of flight. After appointment of counsel and an initial continuance, a two-day detention hearing, consisting of the introduction of numerous exhibits and showing various and sundry videotapes, was held.
Other defendants have been ordered released on certain conditions. Defendant Tejeda consented to an order of detention without prejudice to reconsideration upon motion duly filed. Defendant Guevara was ordered detained in another case pending before this court, and detention hearings in this case were ordered deferred with the consent of all parties. Two defendants were released to warrants pending in the state courts, and are currently confined by the state courts. And other defendants remain fugitives.
I. A. Under the provisions of 18 U.S.C. § 3142(c), "[t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person." Thus, a defendant must be released under the provisions of 18 U.S.C. § 3142(b) or (c), or detained pending trial under the provisions of 18 U.S.C. § 3142(e). See 18 U.S.C. § 3142(a).
Under § 3142(e), a defendant may be ordered detained pending trial if the judicial officer finds by clear and convincing evidence, after a detention hearing under the provisions of § 3142(f), ". . . that no condition or combination of conditions (set forth under § 3142(b) or (c)) will reasonably assure the safety of any other person or the community. . . .", or if the judicial officer finds by a preponderance of the evidence, after a detention hearing under the provisions of § 3142(f), ". . . that no condition or combination of conditions (set forth under § 3142(b) or (c)) will reasonably assure the appearance of the person as required . . .".
The distinction between the former and latter are made clear by the very language of Section 3142(f). In the last paragraph of that section, Congress has stated there must be clear and convincing evidence to authorize pretrial detention when the question is whether any condition or combination of conditions "will reasonably assure the safety of any other person and the community. . .". (Last emphasis added). By not requiring that same standard vis a vis an assessment of risk of flight, it is clear that a lesser standard — i.e., preponderance of the evidence — applies. And that is precisely the holding in this and other Circuits. See e.g., United States v. Patriarca, 948 F.2d 789, 792-93 (1st Cir. 1991); United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987); United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert. dismissed, 107 S.Ct. 562 (1986); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985); United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986).
B. The government is entitled to move for detention on grounds of danger to the community in a case that —
(1) involves a crime of violence within the meaning of § 3156(a)(4);
(2) involves an offense punishable by death or life imprisonment;
(3) involves an offense proscribed by the Controlled Substances Act or the Controlled Substances Import and Export Act for which the punishment authorized is imprisonment for ten years or more; or
The maximum penalty is that provided by the statute defining and/or providing the punishment for the substantive offense — not the sentence, or even the maximum sentence, which might otherwise be imposed under the federal Sentencing Guidelines. See United States v. Moss, ___ F.2d ___, No. 89-1859, Sl.Op. 8-12 (1st Cir. October 5, 1989).
(4) involves any felony alleged to have been committed after the defendant has been convicted of two or more crimes of violence, or of a crime, the punishment for which is death or life imprisonment, or a ten year [or more] offense under the Controlled Substances Act or the Controlled Substances Import and Export Act.
Additionally, the government or the court sua sponte may move for, or set, a detention hearing where there is a serious risk that the defendant will flee, or where there is a serious risk of obstruction of justice or threats to potential witnesses. See 18 U.S.C. § 3142(f).
C. In determining whether there are conditions of release which will reasonably assure the appearance of the person as required and the safety of any other person and the community, or whether pretrial detention is warranted, the judicial officer must take into account and weigh information concerning —
(a) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(b) the weight of the evidence against the accused;
(c) the history and characteristics of the person, including —
(i) his 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
(ii) whether, at the time of the current offense or arrest, he was on probation, on parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(d) the nature and seriousness of the danger to any other person or the community that would be posed by the person's release. . . .
D. Additionally, in making the determination, the judicial officer must consider two rebuttable presumptions, to wit:
First, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person or the community if the judicial officer finds (1) that the defendant has been convicted of a Federal crime of violence within the meaning of § 3156(a)(4) [or a state crime of violence within the meaning of § 3156(a)(4) if the offense would have been a federal offense if a circumstance giving rise to federal jurisdiction had existed], a federal offense for which the maximum sentence is life imprisonment or death, a federal offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act — e.g., possession of cocaine, heroin, more than 1000 pounds of marihuana, with intent to distribute —, or the Controlled Substances Import and Export Act, or any felony after the person has been convicted of two or more prior offenses as described immediately above, or two or more state or local offenses that would have been offenses described immediately above if circumstances giving rise to federal jurisdiction had existed; (2) that prior offense was committed while the person was on release pending trial; and (3) not more than five years has elapsed since the date of conviction for that prior offense, or his or her release for that prior offense, whichever is later.
Second, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person has committed an offense for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act or the Controlled Substances Import and Export Act or an offense under the provisions of 18 U.S.C. § 924(c) — i.e., use of or carrying a firearm during the commission of a federal offense which is a felony.
Because of the charges set forth in the indictment, the statutory presumptions are clearly applicable to this case.
Insofar as the latter "presumption" is applicable in assessing "risk of flight", the burden remains with the government to establish ". . . that no condition or combination of conditions will reasonably assure the appearance of the person as required. . . .". In striking the proper balance, this court must bear in mind Congress' findings that major drug offenders, as a class, pose a special danger of flight. The burden then rests on the defendant to come forward with "some evidence", United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991), indicating that these general findings are not applicable to him for whatever reason advanced. At this point, this court must weigh all relevant factors [set forth under § 3142(g)], and then determine whether any condition or combination of conditions will reasonably assure the appearance of the [defendant] as required. . . .". The decision is an individualized one based on all relevant factors. See United States v. Jessup, 757 F.2d 378 (1st Cir. 1985).
The presumption is always entitled to evidentiary weight, the amount of which, if at all, depends on the nature of the production by the defendant and the other factors set forth under Section 3142(d). On later occasion, the United States Court of Appeals has observed, inter alia:
Section 3142(e), however, only imposes a burden of production on a defendant. The burden of persuasion remains with the government. Nevertheless, even after a defendant has introduced some evidence to rebut the flight presumption, the presumption does not disappear, but retains evidentiary weight — the amount depending on how closely defendant's case resembles the congressional paradigm, Jessup, 757 F.2d at 387 — to be considered along with other factors.
United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir. 1987) (per curiam); see also, United States v. Perez-Franco, 839 F.2d 867, 869-70 (1st Cir. 1988). Even when a defendant produces "some evidence" in rebuttal, however —
the presumption does not disappear. The burden of persuasion remains on the government and the rebutted presumption retains evidentiary weight. (Emphasis added).
United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991) (Emphasis added). See also, United States v. Rodriquez, 950 F.2d 85, 88 (2d Cir. 1991).
Additionally, with respect to those presumptions which are triggered by a finding of probable cause that the accused committed the offense with which he is charged, the return of an indictment "fair upon its face" conclusively establishes the existence of probable cause, and triggers the applicability of the particular presumption. United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States v. Vargas, 804 F.2d 157, 161 (1st Cir. 1986); United States v. Dominiguez, 783 F.2d 702 (7th Cir. 1986); United States v. Hurtado, 779 F.2d 1467, 1477-1479 (11th Cir. 1985); United States v. Contreras, 776 F.2d 51, 52, 54-55 (2d Cir. 1985); United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985).
Moreover, one may be considered a danger to the community even in the absence of a finding by clear and convincing evidence that the accused will engage in physical violence. To the contrary, as noted by the Committee on the Judiciary (Report of the Committee on the Judiciary, United States Senate, on S. 215. 98th Congress, Report No. 98-147 (May 25, 1983) —
The concept of defendant dangerousness is described throughout this chapter by the term "safety of any other person or the community." The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence. . . .The Committee also emphasizes that the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the "safety of any other person or the community." (Emphasis added; footnotes omitted).
See also, United States v. Hawkins, 617 F.2d 59 (5th Cir.), certiorari denied, 449 U.S. 962 (1980) (trafficking in controlled substances).
A defendant may be ordered detained as a danger to the safety of another or to the community, however, only if the judicial officer determines that a detention hearing is appropriate under the provisions of 18 U.S.C. § 3142(f)(1)(A) through 3142(f)(1)(D). That is to say, even if a detention hearing is appropriate under Sections 3142(f)(2)(A) through 3142(f)(2)(B) [for risk of flight or danger of obstruction of justice or intimidation of witnesses], danger to the community is not a basis upon which a defendant may be ordered detained prior to trial, unless the government has moved under Section 3142(f)(1), and the judicial officer has determined that a hearing is appropriate under that latter section. See United States v. Ploof, 851 F.2d 7 (1st Cir. 1988).
Finally, the presumptions are applicable if the judicial officer finds probable cause to believe that the accused has committed one of the predicate offenses referred to above, even if the charge before the court does not involve that particular offense. See United States v. Bess, 678 F. Supp. 929, 934 (D.D.C. 1988); but see, United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985).
In this court's view, Judge Robinson's decision in Bess, supra, is the more persuasive one, the holding in Chimurenga, supra, notwithstanding. The Bail Reform Act of 1984 was modeled, in large part, on the preventative detention statutes in effect for a number of years in the District of Columbia. This court does not view the requirement that the offense giving rise to the statutory presumption be contained within the formal charge as consistent with the procedural framework imposed by the statute. The Chimurenga court seems to suggest that the requirement is necessary to provide fair notice to the defendant that the statutory presumption will come into play. But a formal charge, as such, is only one method by which to give that fair notice. For example, in a complaint charging armed bank robbery in violation of the provisions of 18 U.S.C. § 2113(d), the operative facts set forth in the affidavit in support of the charging complaint may well state that the defendant was using a firearm during the commission of the robbery. That is clearly fair notice.
II. Hector B. Arias. The defendant Hector B. Arias is 49 years old, having been born in the Dominican Republic in 1952. He is an illegal alien. For the past four years, he has resided in South Boston with his girlfriend and co-defendant, Yolanda Herrera. Both of his parents and one sibling reside in the Dominican Republic. He reported to Pretrial Services and this court upon his initial appearance that he has a wife and four children, ages 16 to 25, all of whom reside in the Dominican Republic. He is currently unemployed and reports no significant assets or liabilities.
Subsequent information, however, shows that he has yet another son, Hector A. Arias, a co-defendant in this case who is residing in the United States.
The defendant illegally entered the United States on or about June 28, 1991, at or near Brownsville, Texas. On July 9, 1991, he was released on conditions to reside at 201 West 99th Street, Apt. #1W, in New York City, pending deportation hearing scheduled for October 17, 1991. The defendant failed to appear for that hearing.
The Order to show cause was personally served on the defendant on July 9, 1991.
Hector A. Arias. Hector A. Arias reports that he is 28 years old, having been born in 1972. His father is the co-defendant, Hector B. Arias, referred to above. Although not married, he reports that he has two children in the Boston area, each born of a different mother, and each residing with the mother. He reports that he is self-employed as a disc jockey, and, apart from a 1993 Grand Am vehicle, reports no significant assets or liabilities.
When initially interviewed by Pretrial Services, he falsely reported that his true name was Edwin Torres Colon and that he was born in Puerto Rico.
He declined to provide any information concerning the identity of his parents and/or siblings.
In 1996, the defendant was arrested in Boston on a narcotics charge. At that time, he said that his name was Rubi Perez, and that he lived in Providence, Rhode Island. He failed to appear for subsequent proceedings, and was defaulted. On January 27, 1997, he was arrested on another narcotics charge and he used the name Andres Sanchez-Valle, and again said that he lived in Providence, Rhode Island. Upon this arrest, it was determined that Rubi Perez and Andres Sanchez-Valle were, in fact, the same person. The 1996 charge was eventually dismissed on the basis of the allowance of a motion to suppress. He defaulted on the 1997 charge, and that case is still pending.
The defendant illegally entered the United States in or about December 1994. He was subsequently arrested for that illegal reentry. He was eventually released on conditions, with the requirement that he appear for a deportation hearing. He failed to appear for that deportation hearing, and he was ordered deported.
Yolanda Herrera. Defendant Herrera is 45 years old, having been born in the Dominican Republic in 1955. She is an illegal alien, having illegally entered the United States through Mexico in 1993. She reports that, for the past six years, she has resided in South Boston with the co-defendant, Hector B. Arias. Her parents are deceased. She has four children, all of whom reside in the Dominican Republic with their father. She is unemployed and reports no significant assets or liabilities.
In October of 2000, she was arrested in Quincy on a charge of shoplifting. At that time, she was using a false name. A warrant subsequently issued against her on account of the use of that false name, and that warrant remains outstanding.
Linna Gonzalez. Defendant Gonzalez is 32 years old, having been born in the Dominican Republic in 1968. At the current time, she is a legal resident alien. She reports that her parents reside in the Dominican Republic, and that she has five siblings residing in the local area. She has two children who reside with her. She is employed at a hair salon as a hairdresser. She reports no significant assets or liabilities.
In September of 1995, she was charged with possession of burglarious tools and larceny in excess of $100. She subsequently failed to appear in connection with those charges, and she was charged with failure to appear. On or about November 21, 1996, all of those cases were continued without a finding with an order of restitution. On June 19, 2000, she was charged in Quincy with possession of controlled substances (heroin, morphine, and opium) and shoplifting. Those charges are still pending.
Max Palencia. Defendant Palencia is 24 years old, having been born in El Salvador in 1976. He initially entered the United States legally. During his stay in the United States, he provided INS with various addresses, and is currently classified as an illegal alien subject to removal. His father resides in El Salvador. He resides with his mother and stepfather, as well as his girlfriend and their two children, in Dorchester, Massachusetts. He is currently unemployed, and reports no significant assets or liabilities.
In December of 1999, he was convicted of possession of burglarious tools and receiving stolen property in the Dorchester District Court. On those convictions, he received a four month suspended sentence. In December of 1999, he was charged with larceny and receiving stolen property. Those charges were originally continued to March of 2000 for a jury trial, but were then terminated. In March of 2000, he was charged with possession of burglarious tools and breaking and entering in the night time. Those charges were dismissed in June of 2000.
III. The record evidence before this court in the form of exhibits and the Affidavit of Albert M. Terestre (# 47) shows that all of the above-named defendants engaged in a large-scale heroin trafficking conspiracy, and, in furtherance of that conspiracy, sold heroin on numerous occasions to confidential informants and/or undercover police officers. For the reasons set forth in great detail in that affidavit, including all of the Title III interceptions set forth at pages 28-56 (¶¶ 98-202) of that affidavit, the record evidence clearly shows that defendants Hector B. Arias, Hector A. Arias, and Yolanda Herrera, were the principal organizers of that conspiracy, and defendants Gonzalez and Palencia were high-ranked and trusted middle-organization persons.
Most of the sales were recorded by audio as well as by video.
On a number of occasions, visits were made to the hair salon where Gonzalez worked prior to a distribution of heroin. On the night before she was arrested, she sold two bricks of heroin to a confidential informant. On the date of her arrest, as police officers entered her apartment, she was observed throwing packages of heroin out of a window. The packages of heroin were wrapped in gift paper similar to wrappings used in other transactions.
When a search warrant was executed at Hector B. Arias' and Herrera's residence, the executing officers found $15,000 in cash, numerous glassine bags, and gift paper wrapping similar to wrappings used in other transactions and similar to that found in Gonzalez' residence.
On June 23, 1999, Palencia and another (Sixto Soto) sold 12 bricks of heroin to an undercover police officer. Sixto Soto, in a recorded post-sale conversation with the undercover officer, indicated that Palencia would be this [the undercover policeman's] source for future purchases. At the time of this sale, Palencia was on bail from the Dorchester District Court.
IV. In the circumstances, this court finds and concludes that no condition or combination of conditions, short of pretrial detention, will reasonably assure the presence of the above-named defendants or the safety of the community.
Given the nature of the charges against these defendants, the statutory presumptions referred to above, pp. 4-7, clearly apply to this case. And none of the defendants have proffered anything of substance which would affect the weight of those presumptions. That is to say, none of the defendants ". . . [have] produced some evidence to show `that what is true in general is not true in [his or her] case. . . .". United States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985). Indeed, the record evidence before this court fully complements the statutory presumptions.
"[T]he presumption does not disappear. The burden of persuasion remains on the government and the rebutted presumption retains evidentiary weight." (Emphasis added). United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991) (Emphasis added). See also, United States v. Rodriquez, 950 F.2d 85, 88 (2d Cir. 1991).
That does not mean, of course, that the presumption is conclusive. The question is whether the defendant has produced some evidence to show `that what is true in general is not true in [his] case. . . .". Jessup, supra, at 384.
On the matter of risk of flight, each of the defendants, upon conviction, faces a mandatory minimum sentence of imprisonment for ten (10) years. Defendants Hector B. Arias (who failed to appear after release for a previous deportation hearing), Hector A. Arias (who misrepresented his true identity and his place of birth to Pretrial Services and this court upon his initial appearance, and who also failed to appear for a prior deportation hearing, resulting in an order of removal), and Yolanda Herrera (who, on the occasion of a former arrest, gave a false identity) are illegal aliens. Defendants Gonzalez (who was previously charged for failing to appear in the Natick District Court) and Palencia are legal resident aliens. Nevertheless, all defendants, in addition to a mandatory minimum sentence of imprisonment of ten (10) years, also face certain deportation after serving those sentences. Given these consequences upon conviction, and the roots that each of the above-named defendants have in foreign countries, the government has established by a preponderance of the evidence that no condition or combination of conditions — short of pretrial detention — will reasonably assure the presence of the above-named defendants for trial.
As this court has recently observed elsewhere, in the past, in similar cases, it was urged — in different ways — that the threat of deportation after serving a sentence should not loom large in the detention calculi, since a defendant could always be granted a waiver from deportation by the Immigration and Naturalization Service.
That is no longer the case. The Antiterrorism and Effective Death Penalty Act of 1996 has upped the ante in this regard. Under the provisions of 8 U.S.C. § 1252, an alien convicted of an "aggravated felony" [and the current charges are clearly "aggravated felon[ies]", see 8 U.S.C. § 1101(a)(43)(B)] is deportable as a matter of law. Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 amended Section 212(c) and provides that the Attorney General shall not grant a waiver of deportation in such circumstances. And Section 440(c) of the Antiterrorism and Effective Death Penalty Act of 1996 amended Section 106(a)(10) [ 8 U.S.C. § 1105a(a)(10)] of the Act, precluding judicial review of those orders of deportation. See Reyes-Hernandez v. Immigration and Naturalization Service, 89 F.3d 490 (7th Cir. 1996).
So, too, on the matter of danger to the community. The relevant evidence indicates that the conspiratorial organization has been in existence since 1996. And it continued to thrive, despite arrests of its members (e.g., Hector B. Arias, Osorio), to and through the date of the indictment and arrests of these defendants. The relevant evidence shows that these defendants fit the "congressional paradigm, Jessup, 757 F.2d at 387" to a tee, and that record evidence clearly complements the statutory presumption that no condition or combination of conditions — short of pretrial detention — would reasonably assure the presence of the defendants.
V. IT IS ACCORDINGLY ORDERED that the above-named defendants be DETAINED pending trial, and it is further Ordered —
(1) That the defendants be committed to the custody of the Attorney General for confinement in a correction facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
(2) That the defendants be afforded a reasonable opportunity for private consultation with counsel; and
(3) On order of a court of the United States or on request by an attorney for the government, the person in charge of the corrections facility in which the defendants are detained and confined deliver the defendants to an authorized Deputy United States Marshal for the purpose of any appearance in connection with a court proceeding.