Opinion
CRIMINAL NO. 04-133 (SEC)
March 26, 2004
Irene Feldman, San Juan, Peurto Rico, FOR THE GOVERNMENT
Jorge Gerena, Esq., San Juan, Peurto Rico, FOR THE DEFENDANT
FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO ORDER OF RELEASE
Defendant stands charged in a one count indictment charging her with violating Title 8 U.S.C. § 1324(a)(1)(A)(iii) (harboring illegal aliens). The government in this case proffered or made available to the Court the following evidence in support of its request that defendant be detained on dangerousness grounds. First, the defendant was the subject of a search warrant as to her person and residence issued by a judge of the Puerto Rico. Court of First Instance. The complaint which prompted the same alleged that defendant had been observed on more than one occasion distributing drugs from her residence, in which her minor grandchildren reside. (At the time of the search no drugs were found on the defendant's person or in her home). In addition, the defendant was previously arrested in connection to harboring illegal aliens. She was not prosecuted, however, based on an administrative decision made by the U.S. Attorney's Office. Finally, the defendant resides in Isabela, a coastal town in the western part of the island, which is commonly an entrance point for yawls carrying illegal aliens. In the past, she has exhibited aggressive verbal behavior towards U.S. Border Patrol agents and local police officers involved in detecting the entry of illegal aliens into the United States.
The offense as to which defendant stands charged — harboring illegal aliens — is not a "crime of violence" as defined in the Bail Reform Act, see 18 U.S.C. § 3156(a)(4). It is also not one of the other enumerated offenses in Section 3142(f)(1) of the Act. In addition, the defendant does not pose a serious flight or obstruction risk as defined by Section 3142(f)(2) of the Act. Given these conditions, the Court cannot detain the defendant pending trial on any of these grounds. See United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) (holding that "[t]o conclude otherwise would be to ignore the statement in the legislative history [of the Bail Reform Act] that the `circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial'" (citations omitted).
In Ploof, the defendant was indicted for conspiracy to make false statements, willful misapplication of bank funds, and bank fraud. The district court detained the defendant on dangerousness grounds based on the fact that defendant had threatened to kill his girlfriend's husband. The Court of Appeals remanded the case, holding that detention was unwarranted on said ground, if unrelated to the federal charges. 851 F.2d at 11. The Court, however, recognized that if the threatened victim was a material witness in the federal case, detention could be ordered.Id. Also, the Court recognized that, if the defendant's past violent behavior clearly suggested that he would intimidate or threaten witnesses in the federal case, detention could also be authorized on such ground. Id.
In the case at bar, the government has not demonstrated that defendant's purported drug trafficking activities are connected to the charged offense. Also, it has not demonstrated that defendant's verbal remarks to U.S. Border Patrol and local law enforcement officers rise to the level of suggesting that she will intimidate witnesses in the present case. Accordingly, under Ploof, the Court is again impeded from detaining defendant on any of the government's proffered grounds.
In order to address the government's concerns, nonetheless, the Court, as a condition of release has ordered the defendant, who is not employed, to reside with her daughter, Abigail Santiago Perez, who resides in Trujillo Alto. Said municipality is at least an hour and half drive away from Isabela. Further, Santiago Perez was appointed to serve as defendant's third party custodian. Finally, the defendant, during the duration of this case (which should not exceed a few months), is not authorized to travel to Isabela, unless she has the prior approval of the Pretrial Services Office or this Court.