U.S. v. Chavez-Rivas

• Decision Date: 27 February 2008
• Docket Number: No. 08-CR-31.,08-CR-31.
• Parties: UNITED STATES of America, Plaintiff, v. Jose CHAVEZ-RIVAS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

536 F.Supp.2d 962

UNITED STATES of America, Plaintiff, v. Jose CHAVEZ-RIVAS, Defendant.

No. 08-CR-31.

United States District Court, E.D. Wisconsin.

February 27, 2008.

Brian J. Resler, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Plaintiff.

DECISION AND ORDER

LYNN ADELMAN, District Judge.

The government charged defendant Jose Chavez-Rivas with unlawful re-entry after deportation, 8 U.S.C. § 1326, and a magistrate judge initially ordered him detained pending trial. However, the magistrate judge subsequently reconsidered and released defendant on a $50,000 bond (with $10,000 to be posted in cash) and other conditions including electronic monitoring. The government asked me to revoke the release order, and I stayed it pending review. Under 18 U.S.C. § 3145(a), my review is de novo, United States v. Portes, 786 F.2d 758, 761 (7th Cir.1985), but I am not obliged to conduct a de novo hearing, see United States v. Torres, 929 F.2d 291, 292 (7th Cir.1991). In any case, neither side specifically requests a hearing, and I find that the record made before the magistrate judge is sufficient for me to rule. For the reasons that follow, I deny the government's motion to revoke the release order.

I. FACTS AND BACKGROUND

Defendant was born in Mexico in 1971, but came to the United States (illegally) with his family as a child. In 1993, he was convicted of assault with a deadly weapon in a California state court and sentenced to three years in prison. In 1994, immigration authorities deported him to Mexico. He subsequently re-entered the country and married a United States citizen, Sandy Rivas, in 1997. The two settled in Wisconsin and had five children together. However, defendant's applications for permanent residence and/or adjustment of status based on his marriage were denied.

In 2004, defendant was convicted of delivery of cocaine in a Wisconsin state court and sentenced to six years probation with one year in the county jail as a condition. In April 2005, immigration authorities again deported him to Mexico. He again returned to Wisconsin and in September 2005 state authorities revoked his probation, and the court sentenced him to 3½ years initial confinement and 3½ years extended supervision. In December 2007, a Wisconsin Department of Corrections official noticed that defendant was an illegal alien and notified Immigration and Customs Enforcement ("ICE"). A grand jury subsequently indicted defendant for illegal re-entry, commencing the present case.¹

Defendant's`children, ranging in age from three to nine, currently reside with their mother in Milwaukee. The family lived in a home they owned for nine years but lost it to foreclosure. Defendant's wife and children now live in another home in Milwaukee on a five year land contract. Mrs. Rivas has been employed by Northwestern Mutual Life Insurance Company for twenty-seven years and is currently assigned to the investment planning area, earning an annual salary of about $80,000. She borrowed $10,000 against life insurance policies on her children to come up with the cash required by the magistrate judge and agreed to pledge the amount in her 401(k) account as surety for the balance of the bond.

II. EFFECT OF DEFENDANT'S IMMIGRATION STATUS ON THE RELEASE DECISION

In its motion, the government focuses on defendant's illegal presence in the United States and the likelihood that, if I release him, he will be turned over to ICE and deported. Thus, it argues that no conditions of release will assure his appearance in court.

Section 3142(d) of the Bail Reform Act addresses the issue of release when the defendant is a deportable alien. Under § 3142(d), if the court determines that the defendant is not a United States citizen or a lawfully admitted permanent resident and may flee or pose a danger to any other person or the community, it shall detain him for no more than ten days and direct the government's attorney to notify the appropriate immigration official. If such official does not take the defendant into custody during, that ten day period, the defendant "shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." 18 U.S.C. § 3142(d); see also United States v. Adomako, 150 F.Supp.2d 1302, 1304. (M.D.Fla.2001) ("If the INS official does not take`custody during a period of not more than ten days, Congress directs the Court to apply the normal release and detention rules to the deportable alien without regard to the laws governing release in INS deportation proceedings[.]").

In the present case, the magistrate judge did not temporarily detain defendant under § 3142(d) at the initial appearance; rather, he simply entered a detention order under § 3142(f).² Nevertheless, ICE has been notified of defendant's presence and has not taken him into custody, instead lodging a detainer. That being the case, § 3142(d) requires me to treat defendant like any other offender under the Bail Reform Act. See Adomako, 150 F.Supp.2d at 1304 ("Congress chose not to exclude deportable aliens from consideration for release or detention in criminal proceedings."); see also United States v. Harnandez, 747 F.Supp. 846 (D.Puerto Rico 1990) (ordering release of alien-defendant charged with violation of 8 U.S.C. § 1326 where the evidence showed he was not a flight risk).³

III. GENERAL RELEASE STANDARDS

Under the Bail Reform Act, a defendant charged with an offense may be (1) released on' personal recognizance, (2) released on conditions, (3) temporarily detained or (4) detained. 18 U.S.C. § 3142(a). The court may deny release only if no conditions will reasonably assure (1) the defendant's appearance and (2) the safety of the community, § 3142(e), and should resolve doubts about the propriety of release in the defendant's favor, see, e.g., United States v. Hammond, 204 F.Supp.2d 1157, 1161 (E.D.Wis.2002); United States v. Barnett, 986 F.Supp. 385, 392 (W.D.La. 1997).

In determining whether (and which) conditions of release will reasonably assure the appearance of the defendant and the safety of the community, the court considers (1) the nature and circumstances of the offense charged, including whether, the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger, if any, that release would pose. 18 U.S.C. § 3142(g). If the court finds probable cause to believe that the defendant committed a drug offense fir which the maximum penalty is ten years or more or an offense under 18 U.S.C. § 924(c), a rebuttable presumption arises that no condition(s) will reasonably assure the appearance of the defendant and the safety of the community.⁴ § 3142(e). The presumption shifts the burden of production to the defendant to come forward with some evidence that if released he will not flee or endanger the community. Portes, 786 F.2d at 764. Even if the defendant rebuts it, the presumption remains in the case as an evidentiary finding militating against release, but the ultimate burden of persuasion rests on the government. United States v. Dominguez, 783 F.2d 702, 707 (7th Cir.1986).

When the government seeks detention based on the defendant's alleged dangerousness, it must establish "by clear and convincing evidence that no condition or set of conditions will ensure the safety of the community." Portes, 786 F.2d at 764. When the government seeks detention based on the defendant's risk of flight, it must establish by a preponderance of the evidence that no conditions will reasonably assure his appearance in court. Id. at

However, it is important to note that the Bail Reform Act does not authorize detention' in all cases, only if:

1. The case involves a "crime of violence" for which a maximum term of imprisonment of ten years or more is prescribed, § 3142(f)(1)(A);

2. The case involves an offense for which the maximum sentence is life imprisonment or death, § 3142(f)(1)(B);

3. The case involves an offense with a maximum sentence of ten years or more under the Controlled Substances Act, § 3142(f)(1)(C);

4. The defendant is charged with a felony and has two or more prior convictions for any of the offenses described in the 3 categories above, § 3142(f)(1)(D);

5. The case involves a felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device, or any other dangerous weapon, or involves a failure to register as a sex offender, § 3142(f)(1)(E);

6. There is a serious risk that the defendant will flee (in any type of case), § 3142(f)(2)(A); or

7. There is a serious risk that a defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror (again, in any type of case), § 3142(f)(2)(B).

Unless the case falls within one of the above categories in § 3142(f), the court may not detain the defendant. E.g., United States v. Byrd, 969 F.2d 106, 110 (5th Cir.1992) (citing United States v. Ploof, 851 F.2d 7, 11 (1st Cir.1988); United States v. Himler, 797 F.2d 156, 160 (3rd Cir.1986)) (holding that the Act limits "detention to cases that involve one of the six circumstances listed in (f)"); United States v. Friedman, 837 F.2d 48, 49 (2d Cir.1988) (holding that "the Bail Reform Act does not permit detention in the basis of dangerousness in the absence of risk of flight, obstruction of justice or an indictment for the offenses enumerated" in § 3142(f)(1)); United States v. DeBeir, 16 F.Supp.2d 592, 593 (D.Md.1998) (stating that "a finding that one of the six conditions is met is a prerequisite to detention"); United States v. Sloan, 820 F.Supp. 1133, 1135 (S.D.Ind. 1993) ("...