Opinion
Case No. 17-CR-00078-WYD
04-05-2017
UNITED STATES OF AMERICA, Plaintiff, v. GERALDINE ILENE MONTOYA, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
This matter is before the court for detention hearing on April 5, 2017. The court has taken judicial notice of the court's file and the pretrial services report. In addition, 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, 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 in Count One with Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1); in Count Two with Distribution of a Controlled Substance to wit Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and in Count Three with Distribution of a Controlled Substance to wit Cocaine Base (Crack) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). This is a presumption of detention case based upon the charges brought in Counts Two and Three in the Indictment.
Second, I find probable cause exists that defendant has committed the above offenses based upon the Indictment.
Third, I find that the nature and circumstances of this case involves possession of weapon by a felon and distribution of drugs to wit: Methamphetamine and Cocaine Base (Crack). Defendant has suffered eight (8) prior failures to appear and one prior failure to comply which resulted in warrants being issued. Defendant has used at least three alias names in the past. Defendant's Colorado driver's license is revoked. Defendant has a history of alcohol and drug usage. Defendant has used alcohol, cannabinoids, cocaine and methamphetamine in the past. Defendant has previously completed a six-month intensive treatment program in 2012. Defendant has a history of PTSD and insomnia for which she has been previously been medicated. At the time of defendant's arrest in the instant case, the defendant had on her person some crack cocaine and methamphetamine. She also had a loaded weapon in her home at the time of her arrest.
Fourth, I find that Defendant has suffered adult convictions for Theft $100-$500; Vehicle Operator Without Insurance; DUR; DUI; DWAI; Possession of a Schedule II Controlled Substance Over 1 Gram (felony) [three separate convictions]; and Escape from Felony Conviction Not Felony One (felony). Defendant has had her probation and parole revoked in the past. Defendant was on probation when her parole was revoked. Defendant has committed new criminal offenses while on probation and parole in the past. Defendant is a flight risk and a danger to the community.
In light of these facts, I find, by clear and convincing evidence that defendant is both a flight risk and a danger to the community and that there is no condition or combination of conditions of release will reasonably assure her presence in court and the safety of the community. Accordingly, I order that the defendant be detained without bond.
Done this 5th day of April 2017.
BY THE COURT
S/ Michael J. Watanabe
Michael J. Watanabe
U.S. Magistrate Judge