Opinion
Crim. No. EP-04-CR-422(KC)
April 6, 2004
ORDER
Defendant moves for review of his release order and to amend conditions of release. Magistrate Judge Mesa, consistent with the recommendation of Pretrial Services, ordered defendant's release on a corporate surety bond in the amount of $20,000. Defendant argues that he is financially unable to pay the amount required for the bond, and that his appearance can be guaranteed with a $15,000 corporate surety bond, with a 10% cash deposit, which he can afford.
While it is without question that a "judicial officer may not impose a financial condition that results in the pretrial detention of the person," 18 U.S.C. § 3142(c)(2), the ultimate ability of a defendant to meet the financial condition imposed is not ultimately determinative of whether the order constitutes a sub rosa order of detention. United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988) ("a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement"). Two considerations are relevant to bail determinations: "reasonable assurance of the appearance of the defendant and the safety of other persons." Id. If a court "conclude[s] that a large bond is an essential part of a package of conditions designed to secure a reasonable assurance of the defendant's appearance, and the record contains a reasonable basis for that conclusion, the conditions . . . [are] neither constitutionally nor statutorily infirm." Id. at 110. "The court must [however] explain its reasons for concluding that the particular financial requirement is a necessary part of the conditions for release." Id.
The factors this Court considers pursuant to 18 U.S.C. § 31 42(g) largely address the excessive bail concerns addressed through the Eight Amendment. "[T]he governing criterion to test the excessiveness of bail is not whether the defendant is capable of posting bond, but whether the amount set is reasonably calculated to assure the defendant's appearance." Wagenmann v. Adams, 829 F.2d 196, 213 (1st Cir. 1987). "The test for excessiveness is not whether defendant is financially capable of posting bond but whether the amount of bail is reasonably calculated to assure the defendant's appearance at trial." United States v. Beaman, 631 F.2d 85, 86 (6th Cir. 1980); Stack v. Boyle, 342 U.S. 1, 4-5 (1951); United States v. Wright, 483 F.2d 1068, 1070 (4th Cir. 1973); United States v. Bobrow, 468 F.2d 124, 126-27 (D.C. Cir. 1972).
This Court has reviewed de novo the proceedings before Judge Mesa. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985). Defendant is presently unemployed, living with his mother in El Paso. His criminal records reflect three arrests for driving while under the influence (DWI) in Texas and two arrests for driving with a suspended license following his DWI arrest. He further pled guilty in 1997 to charges of importation of marijuana and possession of marijuana with intent to distribute. His supervised release on that conviction was revoked when he tested positive for cocaine. He is presently charged with the same offenses to which he pled guilty in 1997. Given his prior arrest record and revocation of supervised release and lack of stable employment, Pretrial Services concluded that defendant poses both a risk of nonappearance and a risk of danger to the community.
Given the foregoing, this Court is not inclined to find that a bond in an amount less than that recommended, specifically $20,000, will secure defendant's appearance. Defendant is now presumably acquainted with the Sentencing Guidelines and specifically with its application to the offenses with which he is now charged. He has shown an inability to comply with terms of release as evidenced by his earlier revocation and is not presently employed. Considering these facts, this Court would view defendant as a flight risk and conclude that an amount less than $20,000 would not guarantee his appearance. The risk of forfeiture associated with any failure to comply with conditions of release is a necessary term of such release, the effect of which diminishes as the bond amount decreases. It is that effect, not continued detention as a consequence of failure to meet any deposit requirement, which this Court views as necessary. Were the amount to be reduced to $15,000 or $10,000 under the circumstances, the effect of any forfeiture is diminished and it simply becomes more cost effective to flee. Such amount is therefore reasonable based on criminal history, ties to the community and present employment.
Defendant's motion for review of release order (Doc. No. 17) is granted and defendant's motion to amend conditions of release (Doc. No. 17) is denied.
SO ORDERED.