U.S. v. Gonzales, CR. 95-538 MV.

• Decision Date: 13 March 1998
• Docket Number: No. CR. 95-538 MV.,CR. 95-538 MV.
• Citation: 995 F.Supp. 1299
• Parties: UNITED STATES of America, Plaintiff, v. Cesar GONZALES, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

995 F.Supp. 1299

UNITED STATES of America, Plaintiff, v. Cesar GONZALES, et al., Defendants.

No. CR. 95-538 MV.

United States District Court, D. New Mexico.

March 13, 1998.

Thomas English, Asst. U.S. Atty., Albuquerque, NM, for plaintiff.

Natman Schaye, Tucson, AZ, Ray Twohig, Albuquerque, NM, Jeffrey Buckels, Albuquerque, NM, for defendants.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on Defendant Jason DeLaTorre's Appeal of Detention Order and Motion for Pretrial Release, filed December 2, 1997 [Doc. No. 2140], and Motion to Strike Portion of Prosecution's Response to Appeal of Detention Order and Motion for Pretrial Release, filed January 5, 1998 [Doc. No. 2158]. The Court, having fully considered the pleadings, testimony, and relevant law, finds that the motion for pretrial release is not well taken and will be denied, and that the motion to strike consequently will be denied as moot.

Background

Following Jason DeLaTorre's arrest in mid-October 1995, Magistrate Judge Svet ordered him detained, finding probable cause that Mr. DeLaTorre had engaged in a conspiracy to violate 21 U.S.C. § 846, the conspiracy statute. In support of this finding Judge Svet cited evidence that he found to be credible that Mr. DeLaTorre was a member of a gang, one of whose purposes was to traffick in crack cocaine. Judge Svet also found that Mr. DeLaTorre represented a danger to the community because of the type of drug he was charged with trafficking, his possession of a firearm, and the evidence of violence as reflected by an attempted murder on August 1, 1995, in which Mr. DeLaTorre was one of the suspects. Lastly, Judge Svet found that Mr. DeLaTorre was a flight risk because of the transient nature of his moving from house to house, his primary residence in the Los Angeles area, and his lack of close ties to relatives.

Since that arrest and detention, the Government charged Mr. DeLaTorre in a third superseding indictment with multiple counts of conspiracy to distribute cocaine base, racketeering, murder and attempted murder. The Government has also filed a notice of its intent to seek the death penalty for the murder of Edward Sandoval, one of the crimes the Government alleges Mr. DeLaTorre committed. If convicted, then, Mr. DeLaTorre potentially faces severe penalties, up to and including the death penalty. Mr. DeLaTorre now raises challenges to his detention under both the Bail Reform Act, 18 U.S.C. § 3142, and substantive due process protections afforded by the United States Constitution.

In his motion, Mr. DeLaTorre proposes various possible sites and conditions of release. The locations for in-house detention which Mr. DeLaTorre suggests are a halfway house in Albuquerque, one of his attorneys' homes in Albuquerque or Tucson, Arizona, and the home of Rick and Keiko Moore in Chino Hills, California, long-time friends of the DeLaTorre family.

Mr. DeLaTorre has also proposed release conditions such as house arrest, electronic monitoring, regular searches, daily reports to pretrial Services, random drug and alcohol tests, counseling, employment and schooling, a prohibition against any contact with former friends or acquaintances, and abstinence from alcohol and drugs. Lastly, Mr. DeLaTorre's family has offered to post virtually all its property, and Keiko and Rick Moore have pledged all their retirement savings, as a guarantee of his appearance.

The Court held an evidentiary hearing on this motion on January 19, 1998. Apparently because the Government did not notify the family members of Mr. DeLaTorre's alleged victims of the Court's hearing, after seeing a news account of this hearing the father of one victim contacted the Government to express concern for his family's safety. In a supplemental pleading, Government counsel communicated these concerns to the Court and Mr. DeLaTorre's attorneys.

Discussion

I. The Bail Reform Act Challenge

Although this matter is before the Court on Defendant Jason DeLaTorre's motion for release pending trial, the Government bears the burden of showing by clear and convincing evidence that "no condition, or combination of conditions will reasonably assure the safety of any other person and the community." United States v. Nichols, 897 F.Supp. 542, 544 (W.D.Okla.1995), aff'd, 61 F.3d 917 (10th Cir.1995), citing United States v. Salerno, 481 U.S. 739, 742, 752, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In the alternative, the Government may prove by a preponderance of the evidence that Mr. DeLaTorre poses a risk of flight. Nichols 897 F.Supp. at 544, citing United States v. Gebro, 948 F.2d 1118, 1121-22 (9th Cir.1991); United States v. Carlos, 777 F.Supp. 858, 860 (D.Kan.1991); see also United States v. Quartermaine, 913 F.2d 910, 915 (11th Cir. 1990). The factors the Court must consider in determining whether there are conditions of release that will reasonably assure the appearance of a defendant at trial and the safety of the community include:

(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 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.

18 U.S.C. § 3142(g) (1997).

Within this controlling statutory scheme, the Tenth Circuit has explained the relative burdens on the parties, stating that where there is

probable cause that a defendant has committed a federal drug offense carrying a maximum prison term of ten years or more, a rebuttable presumption arises that no conditions of release will assure [the] defendant's appearance and the safety of the community. Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding the risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be introduced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.

United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir.1991), citing United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989); 18 U.S.C. § 3142(e).

The indictment is sufficient to establish a finding of probable cause, Stricklin, 932 F.2d at 1355, and the Court finds that Mr. DeLaTorre has met his burden of production. The witnesses Mr. DeLaTorre presented on his behalf were earnest and credible. The Court also finds, however, that the Government has met its burden of persuasion, and that because of the risk of flight in this case the presumption counsels against Mr. DeLaTorre's release.

Findings of Fact

With respect to the first statutory factor, the Government is prosecuting Mr. DeLaTorre on multiple counts of conspiracy to distribute cocaine, racketeering, and murder. Mr. DeLaTorre therefore is charged both with crimes of violence and with crimes that involve narcotic drugs.

The Government's case consists primarily of testimony of former alleged fellow gang members and co-defendants of Mr. DeLaTorre's. In addition, however, the Government has proffered the testimony of witnesses who can corroborate Mr. DeLaTorre's participation in the gang and its discussions of drug sales and violence, presence at the scene of shootings and in vehicles from which shootings occurred. The Government also has tangible evidence, in the form of photographs and wiretaps, of Mr. DeLaTorre's gang affiliations.¹

The Court received evidence regarding Mr. DeLaTorre's history and characteristics. Mr. DeLaTorre has neither a criminal record nor a history of drug and alcohol abuse. He has significant family ties to California. Mr. DeLaTorre was born in California, as were his parents, grandparents, and great-grand-parents. His parents, siblings and extended family continue to reside in the greater Los Angeles area. In addition, Mr. and Mrs. Rick Moore are life-long family friends with strong ties to the region and the DeLaTorre family.

On the other hand, the Court has reservations due to the fact that at the time of his arrest, in October 1995, Mr. DeLaTorre had very little contact with his mother, who had been awarded physical custody of Jason when she was divorced from his father. Mr. DeLaTorre's father also had little information on his son's whereabouts during this period of time. Jason, who left his home when he was 17 years old, traveled without his parents back and forth between California and New Mexico. When in New Mexico prior to his arrest, Mr. DeLaTorre moved from house to house, staying with friends and making no contribution to rent or other expenses. Mr. DeLaTorre claims to have been unemployed from May, 1995 to the time of his October arrest.

Mr. DeLaTorre has brought forth evidence of a very strong commitment from his family and friends. Mr. DeLaTorre has demonstrated to the Court a willingness on the part of his immediate family and some family friends to post substantially all of their property as a means of ensuring that he will appear for trial, and of providing an environment designed to maximize the likelihood of this appearance. Indeed, members of his family have great faith in him and would risk all their property...