Opinion
Case No. 17-CR-00235-PAB
07-21-2017
UNITED STATES OF AMERICA, Plaintiff, v. FAUSTINO B. JUAREZ, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
This matter is before the court for detention hearing on July 21, 2017. The court has taken judicial notice of the court's file. In addition, the court has considered the proffers by the government and defendant.
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 entire court file, and have considered the proffer 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: 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 - knowingly and intentionally combine, conspire, confederate and agree with each other and with other persons, both known and unknown to the Grand Jury, to possess with the intent to distribute and to distribute a quantity of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance
COUNT ELEVEN: 21 U.S.C. §§ 841(a)(1), (B)(1)(A) and (b)(1)(C) - knowingly and intentionally possess with the intent to distribute, and distribution of a quantity of 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers, commonly referred to as pure methamphetamine or methamphetamine (actual), and a quantity of a mixture and substance containing a detectable amount of cocaine, both Schedule II controlled substance
COUNT TWELVE: 18 U.S.C. §§ 924(c)(1)(A), (c)(1)(A)(I) and 2 - did knowingly possess a firearm, that is, one Glock Model 17, 9 millimeter (mm) caliber semi-automatic pistol with a loaded magazine, in furtherance of a drug trafficking crime.
NOTICE OF FORFEITURE
Second, based upon the Indictment, I find probable cause exists as to the above listed crimes.
Third, I find that defendant was born in Mexico and is a citizen of Mexico. Defendant's legal status in the United States is that he is permanent resident with a green card. Defendant has suffered convictions for DWAI [two separate convictions]; Possession of Alcoholic Beverage; Concealed Weapon; and other traffic offenses and infractions. Defendant has suffered one prior failure to appear which resulted in a warrant being issued. Although defendant has family who live in the community, some of the other family members are co-defendants with the defendant in this case. Further, there was a loaded 9 mm pistol recovered by law enforcement in the defendant's bedroom along with 500 grams of cocaine, methamphetamine, and black tar heroin. The weight of the evidence against the defendant is significant.
Fourth, I find that the rebuttable presumption of detention as outlined in 18 U.S.C. § 3142(e)(3) and (f) applies based upon the charges brought against the defendant in the Indictment. The defendant has not rebutted this presumption.
In light of these facts, I find, by preponderance of the evidence, that the defendant is a flight risk and that 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 21st day of July 2017.
BY THE COURT
S/ Michael J. Watanabe
Michael J. Watanabe
U.S. Magistrate Judge