U.S. v. Cisneros

• Decision Date: 06 May 2003
• Docket Number: No. 03-2009.,03-2009.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lorena CISNEROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

328 F.3d 610

UNITED STATES of America, Plaintiff-Appellee, v. Lorena CISNEROS, Defendant-Appellant.

No. 03-2009.

United States Court of Appeals, Tenth Circuit.

May 6, 2003.

Appeal from the United States District Court for the District of New Mexico, M. Christina Armijo, J Dorothy C. Sanchez, Albuquerque, NM, for Defendant-Appellant.

Steven Craig Yarbrough, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before SEYMOUR, EBEL, and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Lorena Cisneros appeals an order of the United States District Court for the District of New Mexico upholding the determination by a magistrate judge of that court that Cisneros be detained pending trial. By ordering her detention pending trial, the New Mexico district court revoked a prior order of a federal magistrate judge in Arizona that had permitted Cisneros's conditional release until trial. Cisneros argues on appeal that the New Mexico district court did not have the authority to reconsider the original release order and, even if it did, it should have concluded as a result of its review under the Bail Reform Act, 18 U.S.C. § 3141 et seq., that Cisneros was entitled to conditional release pending trial. We hold that the New Mexico district court was authorized to reconsider the Arizona magistrate judge's release order, and we affirm the district court order denying pretrial release to Cisneros in this case.

I.

This case arises out of the government's investigation and pending prosecution of an alleged criminal enterprise known as the Cisneros Organization. The Cisneros Organization has been under investigation by state and federal authorities since at least 1995, and members of the Organization are alleged to have committed murder; manufactured and distributed methamphetamine, cocaine, and marijuana; laundered money generated by criminal activity; possessed and sold stolen vehicles; and tampered with and intimidated witnesses against them in criminal prosecutions, including through the murder of such witnesses. Indeed, in 1998, state prosecutors were forced to file a motion dismissing their case against the Cisneros Organization after three prosecution witnesses were murdered. The Cisneros Organization allegedly operates in New Mexico and Arizona, and one of its leaders is Luis Cisneros, the husband of Lorena Cisneros ("Cisneros"), the appellant in the instant case.

On September 19, 2002, a federal grand jury in New Mexico returned a seventeen-count, second superseding indictment against nine alleged members of the Cisneros Organization. Lorena Cisneros was named in two counts of the indictment: the counts alleging a Racketeer Influenced and Corrupt Organizations Conspiracy (RICO conspiracy) (count two), 18 U.S.C. § 1962(d), and a Stolen Vehicle Conspiracy (count fifteen), 18 U.S.C. §§ 511, 2312, 2313, 2321. Among the specific predicate acts of racketeering activity underlying the RICO conspiracy charge was an alleged conspiracy to murder a potential witnesses against the Cisneros Organization, Jose Moreno, Sr. Moreno and his son were murdered in their home on January 12, 2000.

Lorena Cisneros was arrested on September 20, 2002, in Phoenix, Arizona, where she is a resident, on a warrant issued by the New Mexico district court. Pursuant to Fed.R.Crim.P. 40, Cisneros was brought before a magistrate judge in Phoenix, the government moved to have her detained pending trial, and a detention hearing was held there by Magistrate Judge Lawrence O. Anderson over several days in September and October 2002. On October 4, 2002, Judge Anderson issued an order denying the government's request that Cisneros be detained until trial. Judge Anderson concluded that, under the Bail Reform Act, 18 U.S.C. § 3142(e)-(g), the government had not sustained its burden of proof by a preponderance of the evidence that Cisneros was a serious flight risk, nor had it sustained its burden of proof by clear and convincing evidence that Cisneros was a danger to the community. Accordingly, Judge Anderson ordered her released on her own recognizance, but he imposed conditions on her release. The conditions included restricted travel, prohibitions on communicating with certain individuals believed to be part of the Cisneros Organization, and required drug testing. Judge Anderson also ordered Cisneros to appear in New Mexico district court to be arraigned on the charges in the indictment.

Cisneros appeared for arraignment before Magistrate Judge Don J. Svet in Albuquerque, New Mexico on October 24, 2002. At that appearance, Judge Svet adopted the release conditions imposed by Judge Anderson, and Cisneros remained free pending trial.

Approximately one month later, on November 27, 2002, the government filed a motion with the New Mexico district court seeking an order revoking Cisneros's release order and detaining her pending trial. The government claimed that following the Arizona detention hearing it had learned of Cisneros's personal involvement in the conspiracy to murder Jose Moreno, Sr. The motion was heard by Judge Svet, and a hearing was held on December 6, 2002. Judge Svet considered the transcripts of the Arizona detention hearing before Judge Anderson and additional evidence introduced by the government. The new evidence included a transcript of Cisneros's grand jury testimony; a letter Cisneros allegedly retrieved from a car dealer in El Paso, Texas; transcripts of phone calls between Cisneros and her husband, Luis Cisneros; and additional testimony from Detective Armando Saldate, who had testified at the Arizona detention hearing. The government argued that this evidence indicated that Cisneros was aware of, and assisted her husband in completing, the plan to murder Jose Moreno, Sr. At the conclusion of the hearing, Judge Svet found that Cisneros was both a flight risk and a danger to the community and ordered that she be detained pending trial.

Cisneros appealed Judge Svet's order, and that appeal was heard by New Mexico District Judge M. Christina Armijo at a hearing on December 13, 2002. On December 23, 2002, Judge Armijo issued an order affirming Judge Svet's detention order. Judge Armijo, reviewing the detention order de novo, found that the government had proved by clear and convincing evidence that no conditions of release could be imposed on Cisneros that would reasonably assure the safety of the community and that the government had proved by a preponderance of the evidence that Cisneros posed a serious risk of flight such that no conditions of release would reasonably assure Cisneros's presence at trial. Cisneros, therefore, remained in custody.

Cisneros timely filed a notice of appeal to this Court, and we have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291.

II.

Cisneros advances two arguments in support of her contention that her detention order should be reversed. First, she argues that the New Mexico district court lacked the authority under 18 U.S.C. § 3145(f) to reconsider the original release order entered by the federal magistrate judge in Arizona. This is a question of the construction and applicability of a federal statute that we review de novo. See United States v. Telluride Co., 146 F.3d 1241, 1244 (10th Cir.1998). Second, she argues that even if review by the New Mexico district court was appropriate, that court erred when it determined that she should be detained under the Bail Reform Act, 18 U.S.C. § 3142. Analysis of this claim involves questions of fact and mixed questions of law and fact. We apply de novo review to mixed questions of law and fact concerning the detention or release decision, but we accept the district court's findings of historical fact which support that decision unless they are clearly erroneous. See United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir.1991)(per curiam); United States v. Montalvo-Murillo, 876 F.2d 826, 830 (10th Cir.1989) (per curiam), rev'd on other grounds, 495 U.S. 711, 110 S.Ct. 2072, 109 L.Ed.2d 720 (1990).

A.

We consider first whether the New Mexico district court had the authority to revoke the Arizona magistrate judge's release order and enter its own detention order. The Bail Reform Act of 1984 provides two avenues through which a release or detention order can be reconsidered prior to review on appeal by a court of appeals. The first avenue is provided by 18 U.S.C. § 3142(f), which specifies the hearing procedure that must be followed before a defendant is detained:

(f) Detention hearing. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community....

. . . .

The hearing may be reopened before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of [the defendant] as required and the safety of any other person and the community.

By its terms, this section applies to reconsideration of a detention or release order by the same judicial officer who entered the initial order. In addition, reconsideration is permissible under this section only when there is new information that would materially influence the judgment about whether there are conditions of release which will reasonably assure that the defendant will not flee and will not harm any other person or the community.

The second avenue is provided by 18 U.S.C. § 3145(a) and (b). These sections permit the government or a defendant to file a "motion for revocation" of a release or...