Opinion
CR-22-02174-TUC-JCH (JR) 22-08762MJ-001-TUC-JR
10-07-2022
United States of America, Plaintiff, v. Stephanie Lynn Sides, Defendant.
ORDER
John C. Hinderaker United States District Judge
Before the Court is the Government's "Appeal of Magistrate's Order of Release" (Doc. 14), filed pursuant to 18 U.S.C. § 3145(a), appealing Magistrate Judge Maria S. Aguilera's decision to release Defendant Stephanie Lynn Sides ("Defendant") pretrial to The Haven, a substance abuse treatment facility. Defendant opposes the Motion. (Doc. 15.) For the following reasons, the Court grants the Motion.
The Court finds these matters appropriate for resolution without oral argument. See LRCiv. 7.2(f).
I. Background
On September 9, 2022, Defendant entered the United States from Mexico at the DeConcini Port of Entry in Nogales, Arizona, via the pedestrian entrance. (Doc. 5 at 1.) Defendant was referred to secondary inspection where Border Patrol agents found two packages containing 137.3 grams of fentanyl concealed on her person. (Id.) Defendant waived her Miranda rights and provided a statement. (Id.) Therein, Defendant admitted to obtaining approximately 1,200 fentanyl pills from an individual in Mexico to deliver them to an individual in Tucson, Arizona. (Id. at 1-2.) Defendant confessed she had previously delivered drugs on multiple occasions to different locations. (Id. at 2.)
At Defendant's initial appearance, held on September 12, 2022, Defendant requested that she be screened for residential treatment. (Doc. 14 at 3; Doc. 15 at 2.) The request was granted, and on September 28, 2022, Pretrial Services recommended that Defendant be released, with conditions, to a residential treatment facility. (Doc. 9 at 4-6.) At the detention hearing on September 28, 2022, Judge Aguilera ordered Defendant released on her own recognizance with the following condition: successfully complete a residential rehabilitation program at The Haven (Doc. 11; Doc. 14 at 1; Doc. 15 at 2.) The government moved to stay the release order, and Judge Aguilera granted a stay pending the outcome of an appeal. (Doc. 11; Doc. 14.) The government moves the Court to reverse Judge Aguilera's Order, under 18 U.S.C. § 3145(a), which would result in Defendant's pretrial detention. (Doc. 14.)
II. Legal Standard
A district court's review of a magistrate judge's detention order is de novo. See United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990). The Bail Reform Act mandates the release of a person pending trial unless the court concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person in the community." 18 U.S.C. § 3142(e). It is presumed that there are no such conditions if there is probable cause to believe that the defendant has violated a provision of the Controlled Substances Act or the Controlled Substances Import and Export Act punishable by at least 10 years in prison. 18 U.S.C. § 3142(e)(3)(A). This presumption shifts the burden of production to the defendant, but the burden of persuasion remains with the Government. United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008). If defendant proffers evidence to rebut the presumption of dangerousness or flight risk, the Court then considers four factors in determining whether to detain or a release the defendant:
(1) the nature and circumstances of the offense charged.
(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(Id.; 18 U.S.C. § 3142(g).) The government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). A finding that a person presents a danger to the community must be proved by clear and convincing evidence. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). Any doubts about the propriety of release should be resolved in Defendant's favor. (Id. at 1405). However, the presumption against release remains, even when rebutted, and is to be considered alongside all other relevant factors. Hir, 517 F.3d at 1086.
III. Analysis
The Bail Reform Act creates a rebuttable presumption that a defendant must be detained if there is probable cause to believe that she violated a Controlled Substances Act provision that is punishable by a maximum of 10 years or more. 18 U.S.C. § 3142(f)(1)(A). Defendant is charged with a drug trafficking offense carrying a maximum sentence of ten years or more. See 21 U.S.C. §§ 841, 846, and 960; Doc. 14 at 8; Doc. 15 at 1. Based on Defendant's post-Miranda statements to law enforcement admitting to smuggling fentanyl into the United States, the Court finds that such probable cause exists. Therefore, the burden shifts to Defendant to proffer evidence to rebut dangerousness or flight risk.
Defendant offers that she is a lifelong resident of Tucson with close ties to the community, has a limited criminal history, and is in "desperate need of treatment" for her substance abuse disorder. (Doc. 15 at 4-5.) Defendant further argues that the release conditions requiring Defendant to attend and complete residential treatment at The Haven will "demand [Defendant's] sobriety and attention to detail. Noncompliance will only make her situation worse, and she is aware of that risk." (Id. at 5.)
A. Bail Reform Act Factors
1. Nature and Circumstances of the Offense
The Court may consider the possible punishment and the incentive to flee associated with a defendant's criminal exposure. See United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990) (noting that the defendants faced a greater penalty after being charged with multiple counts with possible maximum sentences that could be served consecutively, which provided a greater incentive to consider flight).
Here, Defendant is charged with possession with intent to distribute more than 40 grams of fentanyl (one count), a non-violent offense, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(vi). (Doc. 1.) She faces a maximum sentence of forty years in prison. 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(vi). Although non-violent, this case carries a greater penalty based on the amount of fentanyl alleged. (Doc. 14 at 2.) On balance, this factor weighs against Defendant.
2. Weight of the Evidence Against Defendant
The weight of the evidence is the least important of the four factors that a court must consider. See United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir.1985); Townsend, 897 F.2d at 994. Here, the fact that Defendant came across the border with nearly 1,200 fentanyl pills concealed on her body coupled with Defendant's statements during a postMiranda interview, wherein she admitted to doing so, weigh against Defendant. (Doc. 5.)
3. History and Characteristics of Defendant
Defendant is a 25-year-old woman and lifelong resident of Tucson, Arizona. (Doc. 9 at 2; Doc. 15 at 4.) Defendant's mother and three siblings all reside in Tucson, Arizona. (Doc. 9 at 2.) Defendant does not have communication with two of her siblings. Id. Defendant has never been married and does not have children. Id. Defendant does not have any family ties outside of the U.S. and does not have a U.S. passport, although she travels to Mexico regularly. Id. Pretrial Services interviewed Kristina Sides ("Ms. Sides"), Defendant's sister, who provided additional information but was unable to verify Defendant's current address. Id. Conversely, Arizona Motor Vehicle Division records confirmed Defendant's current address.
Ms. Sides indicated that she communicates with Defendant twice per month. Ms. Sides further indicated she could not proffer a bond, Defendant was not welcome to stay at Ms. Sides' residence, and that Ms. Sides was unsure as to whether she is willing to serve as a third-party custodian for Defendant. (Doc. 9 at 2.)
Defendant's pending matter in Pima County raises concern. In CR2022-447-001, the State charged Defendant with Possession of a Narcotic Drug for Sale (Fentanyl), a class two felony, and Possession of Drug Paraphernalia, a class six felony, on or about June 19, 2022. (Doc. 14-2 at 2.) On June 20, 2022, the Superior Court released Defendant on her own recognizance, and less than three months later, Defendant was charged in this case. (Id.) Defendant's next court appearance in her Pima County matter is set for October 10, 2022, and the assigned County Attorney has indicated that Defendant's continued release would most likely be addressed at that time. (See Doc. 14 at 5.) Notwithstanding the State Court's decision, Defendant failed to follow her pretrial instructions following her OR release. (Doc. 14-1 ("Violate no federal, state, or local law ... Do not leave the State without written permission of the court.") These concerns are shared and reiterated by Pretrial Services in this case. (Doc. 9 at 4.) Although Defendant's prior criminal history is minor, and lacks any felony convictions, her inability to follow the State Court's instructions, and the alleged offense committed while on release, weigh against release.
The Court is also concerned with Defendants' substance abuse history and mental health. Defendant reported using fentanyl, methamphetamine, marijuana, and previously consumed alcohol. (Doc. 9 at 3.) Contrary to Defendant's self-reporting, Ms. Sides indicated that Defendant also uses heroin, cocaine, and self-medicates with Xanax. Id. Defendant has never attended substance abuse treatment. Id. Defendant has a history of suicidal ideation. (Id. at 3.) She is diagnosed with attention deficit hyperactivity disorder and anger management problems but does not take medication for these conditions. (Id.) It is unknown whether she has received treatment. Lastly, Defendant has been unemployed for the past three years and receives $150 per month for food assistance. (Doc. 9 at 2.)
Defendant has some meaningful ties to Arizona. Such ties, however, do not outweigh her disregard of release conditions in the Pima County case or the more concerning information reported to Pretrial Services. Although the Court appreciates Defendant's willingness to request treatment, and the difficulties associated with overcoming addiction, she has never attended substance abuse treatment, nor is there any indication that she has maintained sobriety over any significant period since she began using drugs. Taken together, this factor weighs against Defendant.
4. Dangerous Nature
The government further contends that Defendant is a flight risk and "arguably, a danger to the community or any person, including herself." (Doc. 14 at 10.) Congress was aware of the dangerousness of drug trafficking when passing the Bail Reform Act of 1984:
The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence.... The Committee also emphasizes that the risk a defendant will continue to engage in drug trafficking constitutes a danger to the “safety of any other person or the community.S.Rep. at 12-13, 1984 U.S. Code Cong. & Adm. News, 3195; see also United States v. Bolivar, 455 F.Supp.3d 1165, 1170-71 (D.N.M. 2020). This danger has been recognized by courts which have denied pretrial release in fentanyl trafficking cases. See, e.g., United States v. Villot-Santiago, 502 F.Supp.3d 579, 580 (D. Mass. 2020); United States v. Taylor, 449 F.Supp.3d 668, 673 (E.D. Ky. 2020) (“It is beyond dispute that distributing narcotics is a serious offense that poses dire health risks to the community-and the risks associated with fentanyl specifically are even greater.”). The Court agrees that where there is a serious danger that the defendant will continue to introduce drugs, violence, and disruptive behavior into the community, such a danger warrants detention. Therefore, “when determining whether to detain [the] defendant the court must, in essence, make a prediction as to whether [the] defendant is likely to traffic in illicit drugs if released pending trial based on, inter alia, the factors prescribed by the Bail Reform Act.” United States v. Gibson, 481 F.Supp.2d 419, 423 (W.D. Pa. 2007).
Here, Defendant incurred the instant charges while released in another matter. Although she admitted to previously delivering drugs, she was arrested with a relatively small amount of fentanyl on her person and there is no suggestion she has violent tendencies. This factor is neutral.
IV. Conditions of Release
A person facing trial is entitled to release under the least restrictive conditions that will reasonably assure the appearance of the person and should only be denied in rare circumstances. Motamedi, 767 F.2d at 1405. Even in the presence of flight risk, a defendant must still be released if there are conditions of release that may be imposed to mitigate the flight risk. See 18 U.S.C. § 3142(e). Moreover, the risk of flight must be "serious." 18 U.S.C. § 3142(f)(2)(A).
Given the nature and circumstance of the charged offense, Defendant's recent noncompliance with her Pima County release conditions, and the severity of her addiction, the proffered alternatives to custody do not reasonably assure Defendant's appearance at future proceedings or her willingness to abide by the Court's orders.
V. Order
After a de novo review, the Court concludes that the government has proven by a preponderance of evidence that Defendant presents a serious risk of flight and finds that no condition or combination of conditions will secure her appearance as required. Accordingly, IT IS ORDERED GRANTING the Government's Appeal from Magistrate's Order of Release (Doc. 14) and REVERSING Magistrate Judge Maria S. Aguilera's September 28, 2022 Release Order. (Doc. 11.)