U.S. v. Montoya

• Decision Date: 16 March 2007
• Docket Number: No. 07-04062M-001-PCT-MEA.,07-04062M-001-PCT-MEA.
• Citation: 486 F.Supp.2d 996
• Parties: UNITED STATES of America, Plaintiff, v. Rene Robert MONTOYA, Defendant.
• Court: U.S. District Court — District of Arizona

486 F.Supp.2d 996

UNITED STATES of America, Plaintiff, v. Rene Robert MONTOYA, Defendant.

No. 07-04062M-001-PCT-MEA.

United States District Court, D. Arizona.

March 16, 2007.

COPYRIGHT MATERIAL OMITTED

Joseph J. Lodge, U.S. Attorney's Office, Flagstaff, AZ, for Plaintiff.

ORDER

ASPEY, United States Magistrate Judge.

On March 8, 2007, Defendant was arrested in Flagstaff, Arizona, by United States Postal Inspection Service officers, for placing a fake bomb in his mailbox in a community postal box in his own neighborhood. The "bomb" was actually comprised of three road flares taped together to simulate dynamite with a commercial grade dynamite fuse inserted. On one of the flares the words "NEX[T] TIME-BACK OFF" were written. Defendant initially disclaimed any knowledge as to who might have placed the bomb in the box, but he suggested the names of several acquaintances who might have had a motive to do so. Ultimately, after further investigation, Defendant confessed to placing the fake bomb in a misguided attempt to obtain sympathy from his estranged wife. On March 9, 2007, due to the unavailability of this Court, Defendant received an initial appearance before a Coconino County Superior Court Judge and was formally charged, by means of a complaint, with violating 18 U.S.C. § 1038. Defense counsel was conditionally appointed and Defendant was temporarily detained pending a preliminary hearing and detention hearing before this Court. On March 14, 2007, the Court reaffirmed the prior appointment of counsel and conducted Defendant's preliminary hearing and detention hearing. The Court found probable cause to support the charge and Defendant was bound over for further proceedings in District Court.

At the conclusion of the detention hearing, Defendant's counsel requested Defendant be released to the custody of his sister, who resides in Flagstaff, which was the disposition also recommended by Pretrial Services. Defendant argued he is not a flight risk and, because he is not charged with a "crime of violence" as that term is defined in the Bail Reform Act, he may not be detained as a danger to the community. Furthermore, Defendant argued the underlying facts of the offense charged do not reflect Defendant's dangerousness because the "bomb" was fake and placed in Defendant's own mailbox. The government requested detention based upon Defendant's danger to his estranged wife, Defendant's brother-in-law, and the community in general. The government also urged the Court to order Defendant's detention based upon a risk of flight. The Court took the matter under advisement.

THE BAIL REFORM ACT

Congress enacted the Bail Reform Act in 1984 in response to criticism that the prior law did not provide judges with sufficient authority to make decisions regarding the pretrial release of defendants who posed serious risks of flight or danger to the community. In its commentary to the Act Congress stated: "... it is intolerable that the law denies judges the tools to make honest and appropriate decisions regarding the release of [dangerous] defendants." Comprehensive Crime Control Act of 1984, S.Rep. No. 98-225, at 5 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3188. In amending the bail statutes "Congress hoped to give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released." United States v. Salerno, 481 U.S. 739, 744, 107 S.Ct. 2095, 2099, 95 L.Ed.2d 697 (1987).

The Bail Reform Act of 1984, 18 U.S.C. §§ 3141, et seq., requires the release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of the community. []. Only in rare circumstances should release be denied, and doubts regarding the propriety of release should be resolved in the defendant's favor. [] On a motion for pretrial detention, the government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk, and by clear and convincing evidence that the defendant poses a danger to the community. []

United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.1991) (internal citations omitted and emphasis added). The Act has been amended by Congress on various occasions, such as in 2003 and 2004, see United States v. Holmes, 438 F.Supp.2d 1340, 1347 n. 6 (S.D.Fla.2005), and most recently by the Adam Walsh Child Protection and Safety Act of 2006, Public Law Number 109-3-248, 120 Stat. 587.

Section 3142(a) of the Act sets forth the analysis the Court must undertake regarding a defendant's release or detention prior to trial. The Court must first determine whether to release the defendant on his personal recognizance or on an unsecured appearance bond. If not so released, the Court must consider release based upon the conditions enumerated in subsection 3142(c). If the defendant is found to be a flight risk or a danger to the community, the conditions of release may include a bond of an amount sufficient that the defendant, being unable to post it, is "de facto" detained. See United States v. Fidler, 419 F.3d 1026, 1028 (9th Cir.2005).¹

Section 3142(g) specifies the factors the Court must consider when determining if any set of conditions will assure the defendant's future appearances and the safety of the community:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence, or an offense listed in section 2332b (g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed 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. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.

18 U.S.C. § 3142(g) (2000 & Supp.2006).

A detention order must include "written findings of fact and a written statement of the reasons for the detention." Id. § 3142(i)(1). "Rule 9(a)(1) of the Federal Rules of Appellate Procedure further requires that the district court `state in writing, or orally on the record, the reasons for an order regarding the release or detention of a defendant in a criminal case.'" United States v. Dowell, 44 Fed.Appx. 386, 388 (10th Cir.2002). See also United States v. Fernandez Alfonso, 816 F.2d 477, 478 (9th Cir.1987).

FINDINGS OF FACT

At the detention hearing the Pretrial Services report indicated Defendant was born and raised in Flagstaff. Defendant has family members who reside in Flagstaff, one of whom, his sister, has agreed to act as a third-party custodian for Defendant. Defendant has been employed full-time by the Parks Department of the City of Flagstaff for seven years. Defendant owns a mobile home near where the fake bomb was placed.

However, in 1998 Defendant was convicted in Flagstaff City Court on one count of domestic violence against his estranged wife. Defendant and his wife have been separated for two years. Defendant has had no relationship with his father, who resides in Flagstaff, since Defendant was kicked-out of the father's home. Defendant and his estranged wife have two children, who live in Cottonwood, Arizona, with their mother. The mother does not allow Defendant to have contact with these children. Defendant also has a sixteen-year-old daughter from a prior relationship, who lives in Phoenix with her mother and Defendant has no contact with this daughter.

Defendant has been depressed since he and his wife separated and he has been taking prescribed antidepressant medication for the past year. Defendant received professional counseling for one month about six to eight months ago. Defendant attempted to shoot himself on December 31, 2006, while consuming alcohol, but the gun misfired.

Testimony by Postal Inspector Rivas indicated' the fake bomb was placed in Defendant's own mailbox and found by the route letter-carrier. While the carrier initially believed the device to be a live dynamite bomb, upon further inspection the bomb was determined to be a fake. Defendant cooperated in the ensuing investigation, consenting to multiple interviews by law enforcement. Although he initially denied involvement in the placement of the fake bomb, upon further questioning, Defendant waived his Miranda rights and confessed to his involvement in the alleged crime. Defendant indicated in a written statement that his motive in devising the fake bomb and placing it in his mailbox was to make his estranged wife speak with him. Defendant further stated: "I guess I still need more help with a doctor."

Postal Inspector Rivas further testified that, during his confession, Defendant said he had thoughts about building a bomb from propane tanks and using it in some unspecified manner involving his brother-in-law. Defendant's brother-in-law...