Opinion
Crim. No. EP-03-CR-1975(KC).
November 21, 2003
ORDER
Defendant moves pursuant to 18 U.S.C. § 3145(b) to revoke the order of continued detention issued by Magistrate Judge Norbert Garney. Having conducted a de novo review, see United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985), of the evidence before Judge Garney under the relevant considerations of 18 U.S.C. § 3142(g), and in light of further considerations relevant to a drug offense, as involved herein, see United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986) ("Congress framed the flight presumption in light of its general finding, based on extensive testimony, that flight to avoid prosecution is `particularly high among those charged with major drug offenses'" (quoting Senate Report at 20, reprinted at 1984 U.S. Code Cong. Ad. News 3203)), this Court is disinclined at present to conclude that defendant adduced sufficient evidence before Judge Garney to rebut the presumption established by 18 U.S.C. § 3142(e) that no conditions of release exist that would reasonably assure the appearance of defendant at trial. United States v. Rueben, 974 F.2d 580, 584 (5th Cir. 1992).
While this Court need not hear new evidence and may resolve the present motion based solely on the evidence before Judge Garney, see United States v. Kyle, 49 F. Supp.2d 526, 527 (W.D. Tex. 1999), ruling shall be deferred to afford defendant an opportunity to proffer evidence on the following considerations:
1. good character: particularly how such character would limit defendant's flight risk;
2. financial resources; and
3. family ties: particularly how the presence of family members in both Texas and Mexico tends to show that defendant would not pose a risk of flight.
Defendant is reminded that failure to address adequately the above considerations constitutes sufficient cause to deny the present motion. Hearing is hereby scheduled for December 1, 2003 at 10:00 a.m.
SO ORDERED.