Opinion
Case No. 2:09-cr-287(2).
December 18, 2009
OPINION AND ORDER
1. Introduction
Defendant Jorge Gonzalez Cabrera was arrested on December 7, 2009, and charged with possession of fifty kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) (b)(1)(C). He and several codefendants have now been indicted on that same offense. On December 16, 2009, the Court held a detention hearing for Mr. Cabrera. After taking evidence, including testimony from Mr. Cabrera's brother, the Court took the issue of detention under advisement. This order will set forth the reasons why the undersigned believes that a release on terms and conditions is appropriate. If the United States does not promptly seek review of this determination, the Court will schedule a hearing at which it will explain these release conditions to Mr. Cabrera and order his release.
2. The Alleged Offense
The indictment is short. It simply alleges, in a single count and in a single paragraph, that on December 7, 2009, the three defendants "did knowingly and intentionally unlawfully posses with intent to distribute fifty (50) kilograms of marijuana, a Schedule I controlled substance . . . [i]n violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), 18 U.S.C. § 2." The United States presented no testimony at the detention hearing, but did introduce, without objection, two photographs of the alleged marijuana and a search warrant application. To the extent that the Court can consider the statements made in the affidavit supporting the search warrant application (Gov. Ex. 3) for the truth of the matters asserted in that affidavit, the offense was committed on December 7, 2009, when law enforcement officers observed a semi-truck, which was being followed by a white van, pull into a warehouse on Harmon Avenue in Columbus. Although they could not see all of the activity occurring in the warehouse, the agents could see a fork lift working at the rear of the truck. Two other vehicles arrived and later departed the scene. Agents eventually stopped one of those vehicles as well as the white van and the semi-truck. The marijuana shown in the photographs (Gov. Ex. 1 and Gov. Ex. 2) was found in the van. Drug dogs alerted on the semi-truck. No marijuana was found in the truck itself, however. Mr. Cabrera was driving the truck at the time of the stop, and agents believe he drove this load of marijuana from Arizona to Ohio. This offense carries, upon conviction, a term of imprisonment of up to twenty years, and qualifies as a "serious drug offense" for purposes of 18 U.S.C. § 3142(e).
2. The Applicable Presumption
The United States' request for detention is based primarily upon the presumption that arises under 18 U.S.C. § 3142(e) for persons charged with serious drug offenses and certain firearm offenses. That statute states, in pertinent part, that:
Subject to rebuttal by the person, it shall be presumed 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 committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. 801 et seq) . . . [or] an offense under section 924(c) . . . of this title. . . ."
Under 18 U.S.C. § 3142(f), if detention is based upon facts supporting a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community, such facts must be proved by clear and convincing evidence. However, if detention is based upon a finding that no condition or combination of conditions will reasonably assure the appearance of the person as required, proof by a preponderance of the evidence is sufficient.
The proper effect to be given to the rebuttable presumption created by a charge under the Controlled Substances Act is discussed in United States v. Jessup, 757 F.2d 378 (1st Cir. 1985). There, the Court indicated that the presumption shifts the burden of producing evidence to the defendants, and also remains in the case even after the defendants have satisfied their production burden. Further, because the history of the statute indicates that Congress had in mind a specific set of circumstances relating to drug offenses which led to the adoption of the rebuttable presumption, it is appropriate for a Court addressing the issue of detention to determine how closely the facts of the case before the Court parallel those of the "Congressional paradigm," or profile of those drug offenders who present the most serious risk of flight or danger to the community. That paradigm, in brief, indicates a Congressional awareness of the lucrative nature of drug trafficking, and the fact that many persons engaged in that occupation have substantial ties outside the United States. Consequently, even if a high monetary bond is set for such persons, they are able, through the use of proceeds derived from drug trafficking, to post such bond, and are also able to flee the country because of their contacts elsewhere.
In order to attempt to rebut the presumption of detention arising from charges under the Controlled Substances Act or other applicable statute, the defendant need not attempt to prove that he or she did not commit the crime as charged. Rather, that burden can be met by introducing evidence of other appropriate factors as described in 18 U.S.C. § 3142(g), including personal history and characteristics relating to character, 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 in court proceedings. If any such evidence is introduced, the presumption cannot be used by the Court as conclusive evidence that the defendant poses an unacceptable risk to the community or that conditions will not reasonably assure the defendant's appearance. United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986). However, that presumption still remains in the case to be given whatever weight the Court deems appropriate.
3. The Defendant's Background
Most of the information regarding Mr. Cabrera's background is found in the Pretrial Services Report. Mr. Cabrera is 55 years old and lives in Phoenix, Arizona. He is not a citizen of the United States, but is a lawful permanent resident, and because he is a Cuban refugee he is not deportable. He has two brothers living in the United States, one of whom lives with him in Phoenix. He is married to a Mexican citizen who is still living in Mexico.
Mr. Cabrera is a truck driver. He currently owns his own semi-truck (the one involved in this case) and operates it through his own trucking company. He has no history of substance abuse and no criminal record in the United States. He voluntarily disclosed that he had been arrested twice in Cuba — thirty years ago for robbery, and more recently due to his political activity. If released, he would return to Phoenix to live in a residence which he owns. He is willing to have electronic monitoring established at that residence and could be supervised by the United States Pretrial Services Office located in Phoenix. The Pretrial Services Office in Columbus has recommended his release and has proposed a set of release conditions, including posting a $25,000 unsecured bond, reporting to Pretrial Services, electronic monitoring, drug testing and treatment if appropriate, surrendering any passport, and remaining in the District of Arizona except for travel to and from Ohio for purposes of this case.
The defendant's brother's testimony confirmed much of this information. He also described the defendant as a good citizen and a good neighbor, and stated he was very surprised to learn that the defendant may have used his truck to transport marijuana.
4. Analysis
Both parties acknowledge that there is a presumption in this case favoring detention, and that it is the defendant's burden to come forward with some evidence to show that there are release conditions available which would both guard against any danger which the defendant might pose to the community and reasonably assure his appearance in court. The Court concludes that the defendant has satisfied that burden here.
In addition to the presumption, this is a case involving narcotics, and the evidence against the defendant appears fairly strong, although the marijuana was not actually seized from his semi-truck. Those factors favor the government's position. See 18 U.S.C. § 3142(g)(1), (2). On the other side of the ledger, the defendant has a good employment history, has family in the United States including the brother with whom he lives in Phoenix, has resided in that community for approximately fifteen years, has no history of drug abuse, and has no prior criminal record. These factors all favor release. 18 U.S.C. § 3142(g)(3)(A).
As far as danger to the community is concerned, in this type of case, the factors the Court typically takes into account in ordering detention are: (1) whether the defendant is a repeat drug offender; (2) whether the offense involves the use or possession of a weapon or the defendant has prior weapons convictions; (3) whether the defendant has any prior charges or convictions relating to crimes of violence; (4) whether the defendant appears to be the leader or organizer of a drug trafficking organization or conspiracy; and (5) whether any threats have been made to other persons in connection with the offense. None of these factors is present here.
In evaluating whether there is a risk of flight or nonappearance, the Court typically takes these additional factors into account: (1) whether some type of close supervision such as electronic monitoring is feasible; (2) whether the defendant has ties to other countries which would make it possible or likely for him to leave the United States; (3) and whether the defendant has ever absconded from supervision in the past, has violated conditions of release, probation or supervised release in the past, or has failed to appear in court. The first and third of these factors favor release. As to the second factor, it seems unlikely that the defendant would attempt to return to his native country, Cuba, after having been arrested for his political views and having come to the United States as a refugee. The fact that his wife is in Mexico is of some concern, but the defendant himself is not a Mexican citizen nor has he ever lived in that country. Given the fact that he is apparently involved in a first-time marijuana offense for which there is no mandatory minimum sentence, the Court thinks it unlikely that he would give up residence in the United States in order to avoid punishment. He does not appear to have the financial means to flee within this country and avoid apprehension. The availability of electronic monitoring also cuts against any risk of flight. Finally, travel between Phoenix, Arizona and Columbus, Ohio would not appear to be so difficult that the defendant would be unable to make his court appearances here. The Court was also impressed with his brother's support and willingness to assist the defendant in making his court appearances. Consequently, the Court concludes that the conditions of release recommended by the Pretrial Services Office will adequately safeguard the community against any risk posed by the defendant's release and will reasonably assure his appearance in court.
5. Conclusion
For these reasons, the Court finds that an order setting conditions of release should be entered. If the United States does not seek review of this decision by the close of business on Monday, December 21, 2009, the Court will set a hearing the following day at which Mr. Cabrera will be released.