US v. Montalvo-Murillo

• Decision Date: 01 March 1989
• Docket Number: CR No. 89-86 JC.
• Parties: UNITED STATES of America, Plaintiff, v. Guadalupe MONTALVO-MURILLO, Defendant.
• Court: U.S. District Court — District of New Mexico

713 F. Supp. 1407

UNITED STATES of America, Plaintiff, v. Guadalupe MONTALVO-MURILLO, Defendant.

CR No. 89-86 JC.

United States District Court, D. New Mexico.

March 1, 1989.

Robert Gorence, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff.

Bernard J. Panetta, El Paso, Tex., Angel Sainz, Las Cruces, N.M., for defendant.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

On February 21, 1989, following a detention hearing held under 18 U.S.C. § 3142(f), the United States Magistrate for the District of New Mexico prepared, but did not enter, an order setting conditions of release of the defendant. Plaintiff took an immediate appeal to the District Court for a de novo hearing pursuant to 18 U.S.C. § 3142 which was held on February 23, 1989. Based on the evidence presented during the de novo hearing, I find that there is probable cause to believe that the defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act and that the defendant has failed to rebut the resulting statutory presumption that no condition or combination of conditions will reasonably assure defendant's appearance as required and the safety of the community. However, I also determined that there has been a failure to comply with 18 U.S.C. § 3142(f) which precludes further detention of the defendant and mandates the setting of conditions for his release. In addition, I find that the Order Setting Conditions of Release prepared by the United States Magistrate on February 21, 1989 is appropriate with one exception, and that it should be entered as the order of this court after amending paragraph 7(j) to require a bond in the amount of $88,500.00, secured by the execution and delivery of mortgages or other legal instruments covering the unencumbered assets of defendant and his wife, before defendant is released.¹

Background. On February 8, 1989 defendant, a Mexican citizen and legal resident alien of the United States, was arrested by United States Customs agents at a checkpoint in Orogrande, New Mexico in connection with the discovery of a substantial quantity of cocaine in an auxiliary gasoline tank mounted in the rear of defendant's pickup truck. According to the customs agents, defendant advised that his destination was Chicago, Illinois where he intended to make delivery of the cocaine, and at the agents' request defendant agreed to participate in a "controlled delivery" to the anticipated purchasers. The customs agents then met with personnel of the Drug Enforcement Administration who made arrangements for the Chicago venture. Consequently, defendant flew to Chicago, Illinois in the company of a DEA agent and another DEA agent drove defendant's vehicle to Chicago where the controlled delivery was attempted. However, nobody showed up to receive the shipment in Chicago.

On February 10, 1989 a complaint was filed in New Mexico and the United States Magistrate for the District of New Mexico issued a warrant for defendant's arrest; and defendant, who at the time was in Chicago, was taken before a United States Magistrate in Illinois for a hearing in accordance with Rule 40 of the Federal Rules of Criminal Procedure. This was defendant's initial appearance before a judicial officer.

During the February 10 hearing Ms. Garza, the Assistant United States Attorney who was handling the case, advised the Magistrate that the Government "was going to move for detention" but an agreement had been reached with Ms. Green, defendant's court appointed counsel. Ms. Garza represented it had been agreed that defendant would consent to removal of the proceedings to New Mexico, where he was charged, if he would be returned to New Mexico immediately. Ms. Garza stated that they had also agreed that defendant would waive a detention hearing in Illinois, but he would not waive his rights to a preliminary hearing or a detention hearing in New Mexico.

The United States Magistrate in Illinois did not ask defendant any questions to determine his ability to understand his rights and the nature of the proceeding. She asked no questions about his understanding of his rights under 18 U.S.C. § 3142(f). She did not make findings that defendant had knowingly and voluntarily waived his right to an immediate detention hearing or that defendant had consented to a continuance. The Magistrate advised the defendant, through an interpreter, that before being sent back to New Mexico he had the right to a determination that there was probable cause to believe he committed an offense and that he was the person named in the complaint and further advised him that he was entitled to a hearing on detention or bail. The Magistrate then asked "Is that agreeable to you?" Defendant's counsel responded, obliquely, that "we are not waiving the preliminary hearing." The Magistrate then rephrased the question to defendant by asking "Is that acceptable?" Defendant's response, through the interpreter, was "Yes ... if they want me to, I'm with them." Next, the Magistrate asked defendant if he had talked to his counsel, Ms. Green, "about it" and defendant's interpreted reply was "Yes, well she is Ms. Green, right?" The Magistrate said "yes" and "alright, then we will enter an order of removal specifically reserving the issues on detention and probable cause for determination by the District Court in New Mexico ..." Defendant made no statements during the hearing in Illinois other than the two responses, set forth in full above, and a reply of "yes" to a question about whether he understood he was present for a removal hearing. The United States Magistrate in Illinois ordered that the defendant be returned to New Mexico; he was returned late on the evening of Friday, February 10, 1989 and was jailed in Las Cruces, New Mexico.

On the morning of Monday, February 13, 1989, a representative of the Drug Enforcement Administration conferred with the secretary in the office of the United States Magistrate in Las Cruces, New Mexico about a date and time for a detention hearing and arraignment. The Office of the United States Magistrate for the District of New Mexico scheduled a hearing on Thursday, February 16, 1989. On Wednesday, February 15, 1989 the United States Magistrate appointed counsel to represent the defendant, but retained counsel appeared on defendant's behalf at the hearing the following day, February 16, 1989.

It appears that the Assistant United States Attorney and defendant were prepared to proceed with the detention hearing on February 16, 1989; neither the government nor the defendant moved for a continuance. However, at the beginning of the February 16 hearing the Magistrate stated that "in the interest of justice" the detention hearing should be rescheduled on February 21, 1989, apparently because a Pre-Trial Services Report had not yet been prepared. Again, at the February 16, 1989 hearing, which was defendant's first appearance before a judicial officer in New Mexico, no inquiry was made of defendant's understanding of his right to an immediate detention hearing under 18 U.S. C. § 3142(f) and there was no finding that defendant had knowingly and voluntarily waived his right to an immediate hearing. In fact, the Magistrate did not advise defendant of any rights and asked him no questions. Moreover, the United States Magistrate made no finding, as required by 18 U.S.C. § 3142(f), that there was "good cause" to continue the hearing to February 21, 1989.

In regard to postponing the hearing to February 21, 1989, the Magistrate stated that the hearing would be held that date if the Government moved to detain the defendant and indicated that if it did not, on February 21, 1989 the Magistrate would set conditions of release. The Government filed a Motion for Detention on February 17, 1989. This was the first detention motion that was actually made; the Government had intended to move for detention on February 10, 1989 before the Magistrate in Illinois, but had not done so by reason of the agreement reached with defendant's court appointed counsel in Illinois. Since the Government filed a written motion for detention on February 17, 1989, the United States Magistrate in Las Cruces, New Mexico proceeded with a detention hearing on February 21, 1989 at the conclusion of which the Magistrate said he would set conditions of release but would allow the Government an opportunity to appeal to United States District Court before entry of the order setting conditions of release. The United States Attorney therefore requested an immediate hearing before the District Court and that hearing was held on February 23, 1989.

Flight Risk and Community Danger. U.S. Customs agents inspected the defendant's 1985 Ford pickup, in which defendant was the only occupant, at approximately 3:30 A.M., February 8, 1989 at a checkpoint near Orogrande, New Mexico and discovered 72 pounds of cocaine, with an estimated street value of almost one million dollars, in an auxiliary fuel tank having no fuel line connections. On February 17, 1989 a Grand Jury indicted defendant for possessing with intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A), the penalty for which would be a term of imprisonment of not less than 10 years and could be life imprisonment. The indictment was enough to support a finding of probable cause giving rise to the rebuttable statutory presumption under 18 U.S.C. § 3142(e).

In an effort to rebut the statutory presumption raised by 18 U.S.C. § 3142(e), defendant produced evidence which showed that he resided and worked in Chicago, Illinois as a legal resident alien from approximately 1979 to mid-1986 and that in 1980 he married Elisa Madrigal Salgado with whom he had three children, all of whom are United States citizens by reason of their birth in the United States. W-2 forms submitted by defendant reflect that he earned wages from employment...