Opinion
No. 02-10066-01-WEB
June 5, 2002
Memorandum and Order
This matter came before the court on June 5, 2002, for a hearing on the Government's motion to revoke the Magistrate Judge's determination that the defendant should be released on bond pending trial.
The Magistrate conducted a detention hearing on May 17, 2002, and determined that the defendant should be released pending trial upon certain conditions including the posting of an appropriate $100,000 bond with a $50,000 cash deposit. The Magistrate indicated he would conduct a "Nebbia hearing" (see United States v. Nebbia, 357 F.2d 303 (2nd Cir. 1966)) when arrangements for the bond were made. Before any such hearing could be conducted, however, the Government filed its present motion for review. Both parties agree it is appropriate for the court to address the Government's motion at this time notwithstanding that the Magistrate had not yet filed an order of release.
This court reviews an order of release under 18 U.S.C. § 3154(a)(1) de novo, meaning the district court may make independent findings and need not defer to the findings of the magistrate. United States v. Carlos, 777 F. Supp. 858, 859 (D.Kan. 1991). The court has discretion in determining whether to take additional evidence or to rely on the record of the earlier hearing. See United States v. Frietas, 602 F. Supp. 1283, 1293 (D.Cal. 1985). When the Government seeks to detain an arrestee pending trial, it bears the burden of demonstrating by clear and convincing evidence that no release conditions will reasonably assure the person's appearance as required and the safety of any other person and the community. See § 3142(e)(f). In making this determination, the court must take into account the available information concerning the factors in § 3142(g), including the nature and seriousness of the charges, the weight of the evidence against the person, the history and characteristics of the person, and the nature and seriousness of the danger posed by the person's release. Id. See also United States v. Salerno, 481 U.S. 739 (1987).
Certain types of offenses, because of their serious nature, give rise to a rebuttable presumption that the defendant is a flight risk and a danger to the community. § 3142(e). The offense charged in this case is such an offense. If convicted, the defendant could face a mandatory minimum sentence of 10 years imprisonment and a maximum of life imprisonment. Because the presumption has been invoked, the defendant carries the burden of coming forward with some evidence to rebut it, although the burden of persuasion always remains with the government. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain the defendant. At the same time, nothing in the Bail Reform Act is to be construed as modifying or limiting the presumption of innocence.
After considering all of the relevant factors, the court concludes that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community. Among other facts, the following persuade the court there would be a significant risk of flight if the defendant were to be released pending trial. Although the defendant is a long-time resident of the United States and has become a United States citizen, he has significant ties to Mexico, having been born there and lived there until he was approximately 13 years old. The defendant's father currently resides in Mexico. The defendant, who resides with his wife in San Diego, California, informed the Probation Office that he travels to Tijuana, Mexico, approximately twice weekly to visit his father and friends. The defendant and his wife have no children. Although the defendant has numerous siblings who live in the United States, one or more of these siblings apparently maintains residences both in the United States and Mexico.
The defendant has been unemployed since September of 2000, and has a significant amount of debt. He reports owing about $12,000 on a 1999 pickup truck, $6,000 on a 1997 Ford Explorer, $40,000 in credit card debt, and $2,000 on a personal loan. The defendant and his wife obtained a loan of approximately $144,000 to purchase a home in San Diego. They have been paying the monthly mortgage of $1,100 for about five years, and the balance on the loan is now about $133,000. When asked how he and his wife have been supporting themselves recently, the defendant told the Pretrial Services Officer they had been living off "savings and credit cards."
According to the Government, on April 28, 2002, the defendant was traveling through Kansas in a 2001 Ford Explorer accompanied by his wife and mother-in-law when he was stopped by law enforcement. A subsequent search of the Explorer disclosed a hidden compartment containing approximately 24 kilos of cocaine. The Government represents that the defendant informed the officer that the Explorer was not his but he was purchasing it from an uncle. The defendant's wife apparently told the officer at that time that she was unemployed.
All of the facts, including the defendant's ties to Mexico, the fact that he resides close to the border and has frequent travels to Mexico, his lack of apparent means of legitimate income in the past two years, his significant debt, and the fact that he is potentially facing a mandatory minimum prison sentence of ten years, lead the court to conclude that the government has met its burden of showing that the defendant would pose a flight risk and a danger to the community if released. The court has considered all reasonable alternatives to detention.
As the court noted at the detention hearing, the trial in this case is set for July 9, 2002, and, assuming there is no other disposition of the matter, it will proceed to trial on that date.
Conclusion.
The Government's motion for review is granted. The determination of the Magistrate Judge that the defendant should be released on conditions of bond is hereby vacated, and the court orders that the defendant be detained pending trial.
The defendant Augustine Amezola is hereby committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody on appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the government, the person in charge of the corrections facility shall deliver the defendant to the United States marshal for the purpose of an appearance in connection with a court proceeding.