Opinion
No. 1:02-cr-006.
March 15, 2002
MEMORANDUM AND ORDER
On January 25, 2002, United States Magistrate Judge William B. Mitchell Carter held a detention hearing and ordered that defendant Jesus Hernandez ("Hernandez") be detained without bail pending trial pursuant to 18 U.S.C. § 3142. [Court File No. 42]. The matter presently before the Court is an interlocutory appeal of the detention order filed by Hernandez under FED. R. CRIM. P. 58(g)(2)(A) and E.D. TN. LR 72.4(b). [Court File No. 43]. The interlocutory appeal is tantamount to a motion for review and revocation of the Magistrate Judge's detention order pursuant to 18 U.S.C. § 3145(b).
In these circumstances, the district court applies a de novo standard of review. United States v. Reuben, 974 F.2d 580, 585 (5th Cir. 1992); United States v. Koenig, 912 F.2d 1190, 1191 (9th Cir. 1990); United States v. Williams, 948 F. Supp. 692, 693 (E.D.Mich. 1996). After reviewing the record de novo, the Court concludes that the Magistrate Judge's order of pretrial detention is correct. This Court agrees with and affirms the Magistrate Judge's decision.
Hernandez stands indicted on one count of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846. [Court File No. 32, Indictment]. At the detention hearing, the defendant's counsel proffered that Hernandez has no prior criminal record. He has been employed and resides in Dalton, Georgia, where he has a wife and family. When he was arrested on the instant charge, Hernandez tested negative for use of illegal drugs. Based on these factual allegations, Hernandez contends he should be released on bail pending trial.
Magistrate Judge Carter determined that despite the defendant's lack of prior criminal record and despite his family and employment connections to the community of Dalton, Georgia, the rebuttable presumption of detention is triggered under 18 U.S.C. § 3142(e). Magistrate Judge Carter found that the government's incriminating proof against Hernandez is very strong and the quantity of methamphetamine is very large. If convicted, Hernandez will be returned or deported to Mexico and he has a strong incentive to flee prior to trial. Hernandez is not a citizen of the United States.
In the instant interlocutory appeal, Hernandez argues that he has met his burden of rebutting the presumption for pretrial detention. Hernandez again states that he has no prior record of criminal convictions, has a steady five-year work record at one job, and has no history of drug abuse. In addition, Hernandez has a wife and infant child, as well as siblings and parents, who reside in the Dalton, Georgia, area. Consequently, Hernandez contends he has close ties to the Dalton community which make it unlikely that he will take flight to avoid prosecution.
21 U.S.C. § 3142(e) provides that a person shall be detained pending trial if after a hearing, the judicial officer finds that no condition or set of conditions will reasonably assure the person's appearance as required and the safety of any other individual and the community. Section 3142(e) further provides that if the judicial officer finds there is probable cause to believe the person has committed a criminal offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, 21 U.S.C. § 801 et seq., then there is a rebuttable presumption in favor of pretrial detention. Hernandez does not dispute that the rebuttable presumption in 18 U.S.C. § 3142(e) applies in this case. The indictment is sufficient to support a finding of probable cause triggering the § 3142(e) rebuttable presumption. United States v. Lattner, 2001 WL 1450802 (6th Cir. Oct. 29, 2001); United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States v. Stricklin, 932 F.2d 1353 (10th Cir. 1991); United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985).
The factors to be considered in determining whether to detain a defendant pending trial are set forth in 18 U.S.C. § 3142(g). They include: (1) the nature and circumstances of the offense charged and whether the offense is a crime involving a narcotic drug; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant, including his 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, and criminal history; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's pretrial release.
Once the presumption of pretrial detention is raised pursuant to 18 U.S.C. § 3142(e), Hernandez bears the burden of producing probative, credible evidence to rebut the presumption and support his contention that he will appear in federal court when required and he does not pose a danger to community safety. The § 3142(e) presumption imposes on Hernandez only the burden of production of proof. It does not also shift to him the ultimate burden of persuasion concerning the risk of flight and danger to community safety. The government at all times retains the burden of persuasion. Lattner, 2001 WL 1450802; United States v. Travis, 129 F.3d 1266 (Table, text at 1997 WL 678524 (6th Cir. Oct. 28, 1997)); Rueben, 974 F.2d at 586; United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990); Williams, 948 F. Supp. at 694.
The mere presentation of some evidence by a defendant contrary to the presumption in 18 U.S.C. § 3142(e) does not completely rebut the presumption. Rueben, 974 F.2d at 586; United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989). Upon the defendant's introduction of evidence in support of his release, the statutory presumption in favor of detention does not vanish. The presumption retains evidentiary weight and remains as one factor to be considered. The Court may take into consideration the legislative finding by Congress that persons who commit drug-trafficking offenses pose a special risk of flight and a special danger to the safety of the community. Lattner, 2001 WL 1450802; United States v. Sexton, 205 F.3d 1343 (Table, text at 2000 WL 191667 (6th Cir. Feb. 3, 2000)); United States v. Hoskins, 181 F.3d 105 (Table, text at 1999 WL 282678 (6th Cir. April 29, 1999)); Travis, 1997 WL 678524; Rueben, 974 F.2d at 586; Quartermaine, 913 F.2d at 916; United States v. Hare, 873 F.2d 796, 798-99 (5th Cir. 1989); Williams, 948 F. Supp. at 693, 697.
The government has the ultimate burden of persuasion by clear and convincing proof that detention is necessary because no condition or combination of conditions will reasonably assure the safety of the community. 18 U.S.C. § 3142(f). With regard to the risk of flight, the government must prove by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the defendant's appearance at trial. United States v. Yopp, 991 F.2d 797 (Table, text at 1993 WL 106851 (6th Cir. April 9, 1993)); Quartermaine, 913 F.2d at 916-17; Williams, 948 F. Supp. at 694.
The Court finds that Hernandez must be detained pending trial because he poses an unacceptable risk to community safety. The risk of continued drug-trafficking while released on bail constitutes a significant danger to the safety of the community. Rueben, 974 F.2d at 586-87; Hare, 873 F.2d at 798; United States v. Jones, 980 F. Supp. 359, 362-63 (D.Kan.), aff'd, 127 F.3d 1110 (10th Cir. 1997); United States v. Gourley, 936 F. Supp. 412, 416 (S.D.Tex. 1996); United States v. Fiandor, 874 F. Supp. 1358, 1361 (S.D.Fla. 1995). The drug-trafficking conspiracy with which Hernandez has been charged is very serious in nature and involves a large amount of methamphetamine. The Court has an obligation to protect the community from this type of drug-trafficking activity. The government has met its burden of showing by clear and convincing proof that the pretrial detention of Hernandez is necessary to assure community safety. Moreover, Hernandez has not come forward with sufficient proof to rebut the § 3142(e) presumption in favor of detention on this issue.
Pretrial detention can be ordered based on a judicial finding of either substantial danger to the safety of the community or risk of flight; only one is required. United States v. Portes, 786 F.2d 758, 765 (7th Cir. 1985); United States v. Messino, 842 F. Supp. 1107, 1110 (N.D.Ill. 1994); United States v. Sloan, 820 F. Supp. 1133, 1142 (S.D.Ind. 1993). The Court's determination that Hernandez poses a substantial danger to community safety is sufficient by itself to warrant his continued pretrial detention under 18 U.S.C. § 3142.
The Court further finds that Hernandez has failed to present sufficient evidence to rebut the § 3142(e) presumption that he poses a substantial risk of flight if he were to be released from detention. The Court agrees with the Magistrate Judge that the government has satisfied its burden of persuasion and shown by a preponderance of the evidence that no combination of conditions would reasonably assure that Hernandez will appear at trial. Despite the family and employment ties that Hernandez may have with the community of Dalton, Georgia, the Court has taken into strong consideration the legislative finding by Congress that persons who commit drug-trafficking offenses pose a special risk of flight to avoid prosecution. Moreover, the fact that Hernandez is a citizen of Mexico and not a citizen of the United States establishes an increased risk that he might flee to Mexico to avoid the very serious criminal charge pending in this Court. Based on the present record, the incriminating evidence against Hernandez appears to be relatively strong and he is facing a potentially lengthy sentence of imprisonment in excess of ten years.
Accordingly, the interlocutory appeal filed by Hernandez from the Magistrate Judge's order of pretrial detention [Court File No. 43] is DISMISSED. The Court hereby AFFIRMS the order of pretrial detention entered by the Magistrate Judge on January 29, 2002 [Court File No. 42] pursuant to 18 U.S.C. § 3142. To the extent that Hernandez may be making a motion for review and revocation of the Magistrate Judge's detention order under 18 U.S.C. § 3145(b), said motion is DENIED.
SO ORDERED.