Opinion
22MJ8035-RBM 22CR0304-JO
03-17-2022
UNITED STATES OF AMERICA, Plaintiff, v. HILARIO MARTINEZ-CUAMBA, Defendant.
RANDY S. GROSSMAN United States Attorney Rosario Gonzalez . Assistant U.S. Attorney
Prepared by:
RANDY S. GROSSMAN United States Attorney
Rosario Gonzalez . Assistant U.S. Attorney
FINDINGS OF FACT AND ORDER OF DETENTION
HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE
In accordance with Title 18 U.S.C. § 3142(f) of the Bail Reform Act of 1984 (18 J.S.C. § 3141, et seq.), a detention hearing was held on February 3, 2022, to determine whether the defendant, HILARIO MARTINEZ-CUAMBA, should be held in custody)ending trial on the grounds that he is a flight risk. Assistant U.S. Attorney Rosario Jonzalez appeared on behalf of the United States. Attorney James Johnson of Federal Defenders, Inc. appeared on behalf of the Defendant.
Based on the evidence proffered by the United States and the Defendant, the 'retrial Services' report, and the criminal complaint issued against the Defendant on January 24, 2022 by this Court, the Court concludes that the following facts establish by a)reponderance of the evidence that no condition or combination of conditions required will easonably assure the appearance of the Defendant.
I FINDINGS OF FACT
A. Nature and Circumstances of the Offense Charged (18 U.S.C. §3142(g)(1)):
1. The Defendant is charged in Criminal Complaint No. 22MJ8035-RBM with knowingly transporting, in foreign commerce from Mexico into the United States, visual depictions of minors engaged in sexually explicit conduct, and the visual depictions are of such conduct, in violation of Title 18, United States Code, Section 2252(a)(1). Therefore, probable cause exists to believe the Defendant committed the charged offense.
2. The charged offense is an offense involving a minor victim under Section 2252(a)(1). Therefore, there arises a presumption that no condition or combination of conditions will reasonably assure the appearance of the Defendant as required. See, 18 U.S.C. § 3142(e)(3)(E).
3. The offense carries a minimum mandatory sentence of five (5) years and a maximum sentence of 20 years. See, 18 U.S.C. § 2252(b)(1). According to the United States Sentencing Guidelines, the Base Offense level is 35. See, USSG § 2G2.2. Assuming the Defendant's criminal history score places him in Criminal History Category I, see, USSG § 4A1.1, the sentencing range for Defendant is 168-210 months in prison.
B. Weight of the Evidence against the Defendant (18 U.S.C. § 3142(g) (2)):
1. On January 23, 2022, Hilario MARTINEZ-Cuamba (MARTINEZ) applied for entry into the United States at the Calexico, California West Port of Entry (POE), through the vehicle primary lanes. The Calexico POE is located in the Southern District of California at the United States/Mexico border. U.S. Customs and Border Protection Officer (CBPO) R. Verdin was assigned to the vehicle primary inspection area when MARTINEZ applied for entry. During primary inspection, CBPO Verdin received a computer-generated alert for MARTINEZ and referred MARTINEZ and the vehicle to secondary inspection.
2. In the vehicle secondary inspection area, CBPO E. Lopez inspected MARTINEZ'S vehicle and escorted MARTINEZ to the vehicle secondary office. During
secondary inspection, CBPO Lopez asked MARTINEZ for permission to inspect his cellular devices for contraband, which MARTINEZ agreed to and provided the passcode for. The subsequent inspection of MARTINEZ'S cellular telephone (ZTE Blade V Smart Max cellular phone) by CBPO Lopez yielded positive results for the presence of child exploitation material.
3. CBPOs notified Homeland Security Investigations Special Agents who responded to the port. MARTINEZ was advised of his rights per Miranda. MARTINEZ stated he understood his rights and was willing to answer questions without an attorney present. During the interview, MARTINEZ admitted to knowingly possessing child exploitation material during his entry into the United States from Mexico. MARTINEZ claimed ownership of the ZTE cellular device as well as two Samsung cell phones, two USB drives, and one memory card found among his belongings. MARTINEZ stated additional child exploitation material was present on at least one of the cellular devices he possessed at the time of his entry into the U.S. MARTINEZ estimated he possessed more than two thousand images and videos depicting child exploitation on the cellular devices in his possession.
4. Upon review of one of the Samsung cellular telephones, SA Roberts located a video depicting a prepubescent female engaged in sexually explicit conduct with an adult male, including vaginal and oral penetration. Upon review of the ZTE cellular telephone, SA Roberts located a video depicting two nude adult males attempting to engage in sexually explicit conduct, specifically oral copulation and vaginal penetration, with a nude prepubescent female. As stated above a number of devices were seized from MARTINEZ as he was entering the United States from Mexico, and the review of the devices is ongoing.
C. History and Characteristics of the Defendant (18 U.S.C. § 3142(g)(3)):
1. Defendant is facing a five-year minimum mandatory charge.
2. Though the Court acknowledges this is the least important factor, the weight of the evidence is strong against Defendant including the fact that Defendant made admissions at the time of his arrest.
3. Defendant has unverified familial, residential, community, employment, property and financial ties.
4. Defendant has familial ties and travel to Mexico.
5. Defendant admitted to building a home in Mexico.
D. Nature and Seriousness of Danger Posed by Release (18 U.S.C. § 3142(g)(4)):
Defendant has no criminal history. However, the government proffered evidence to suggest that release of the Defendant would pose a danger to a person or the community. Specifically, Defendant is facing a five-year minimum mandatory charge for violation of Title 18, United States Code, Section 2252(a)(1) and Defendant has access to two minors in Mexico as well as access to a minor in California.
II
REASONS FOR DETENTION
A. There is probable cause to believe that the Defendant committed the offense charged in Criminal Complaint No. 22MJ8035-RBM, specifically, knowingly transporting, in foreign commerce from Mexico into the United States, visual depictions of minors engaged in sexually explicit conduct, and the visual depictions are of such conduct, in violation of Title 18, United States Code, Section 2252(a)(1). Therefore, probable cause exists to believe the Defendant committed the charged offense.
B. The Defendant faces a substantial period in custody if convicted of the offense charged in the Complaint. Therefore, he has a strong motive to flee.
C. The Defendant has not rebutted the presumption, based upon the Court's findings, that no condition or combination of conditions will reasonably assure the appearance of the Defendant at future court proceedings. See, 18 U.S.C. § § 3142(e)(3)(E).
III
ORDER
IT IS HEREBY ORDERED that the Defendant be detained pending trial in this matter.
IT IS FURTHER ORDERED that the Defendant be committed to the custody of the Attorney General, or his designated representative, for confinement in a correctional facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The Defendant shall be afforded reasonable opportunity for private consultation with counsel.
While in custody, upon order of a court of the United States or upon the request of an attorney for the United States, the person in charge of the correctional facility shall deliver the Defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding or any other appearance stipulated to by defense and government counsel.
THIS ORDER IS ENTERED WITHOUT PREJUDICE.
IT IS SO ORDERED.