Opinion
Case No. 12-CR-00047-MSK
07-20-2017
UNITED STATES OF AMERICA, Plaintiff, v. ISMAEL CORDOVA-FRIAS, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
This matter is before the court for detention hearing on July 20, 2017. The court has taken judicial notice of the court's file and the pretrial services report. Moreover, the court has considered the proffers by the defendant and the government.
In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant's presence for court proceedings; or (b) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community. The former element must be established by a preponderance of the evidence, while the latter requires proof by clear and convincing evidence.
If there is probable cause to believe that the Defendant committed an offense which carries a maximum term of imprisonment of over 10 years and is an offense prescribed by the Controlled Substances Act, 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.
The Bail Reform Act, 18 U.S.C. § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community:
(1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including -
(A) the person's 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
(B) whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
The government is requesting detention in this case. In making my findings of fact, I have taken judicial notice of the information set forth in the pretrial services report and the entire court file. Lastly, I have considered the proffers submitted by the government and defense counsel and the arguments of counsel. Weighing the statutory factors set forth in the Bail Reform Act, I find the following:
First, the defendant has been charged in the Indictment as follows:
Count One: Did knowingly and intentionally conspire to distribute, and possess with the intent to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Controlled Substance in violation of 21 U.S.C. §§ 841(a)(1) and 841 (b)(1)(A)(ii)(II) and 21 U.S.C. § 846.
Count Eighteen: Did knowingly and intentionally distribute, and possess with intent to distribute, 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Controlled Substance, and did knowingly and intentionally aid, abet, counsel, command, induce or procure the same in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)(II) and 18 U.S.C. § 2.
Second, I find that probable cause to believe that the defendant has committed the charged offenses based upon the Indictment.
Third, I find that defendant's employment status and time in the community is unknown. There is an ICE detainer that has been lodged against the defendant. It appears from the pretrial services report that the defendant is a citizen of Mexico. Defendant has a Mexican Passport that was seized by law enforcement. It does not appear that defendant has any financial or familial ties to Colorado. Defendant informed pretrial release that he resides in Mexico.
Fourth, I find that defendant has suffered convictions for Illegal Entry, Reentry of a Removed Alien (felony), Careless Driving and No Driver's License. Defendant was previously deported from the United States to Mexico on May 15, 2009.
Fifth, I find that the rebuttable presumption of detention as outlined in 18 U.S.C. § 3142(e)(3) and (f) applies based upon the charge in count one brought against the defendant in the Indictment. The defendant has not rebutted this presumption.
In light of these facts, I find, by a preponderance of the evidence, that the defendant is a flight risk and that there is no condition or combination of conditions of release will reasonably assure his presence in court . Accordingly, I order that the defendant be detained without bond.
Done this 20th day of July 2017.
BY THE COURT
S/ Michael J. Watanabe
Michael J. Watanabe
U.S. Magistrate Judge