U.S. v. Hernandez

• Citation: 778 F.Supp.2d 1211
• Decision Date: 20 April 2011
• Docket Number: No. CR 11–0543 JB.,CR 11–0543 JB.
• Parties: UNITED STATES of America, Plaintiff,v.Tayde HERNANDEZ, Defendant.
• Court: U.S. District Court — District of New Mexico

778 F.Supp.2d 1211

UNITED STATES of America, Plaintiff,

v.Tayde HERNANDEZ, Defendant.

No. CR 11–0543 JB.

United States District Court, D. New Mexico.

April 20, 2011.

Kenneth J. Gonzales, United States Attorney, Elaine Y. Ramirez, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for Plaintiff.Robert J. Gorence, Gorence & Oliveros PC, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Appeal for the Magistrate's Detention Order (Doc. 13), filed March 2, 2011 [Doc. 13], filed March 2, 2011 (Doc. 14) (“Appeal”). The Court held a evidentiary hearing March 9, 2011. The primary issues are: (i) whether the Confrontation Clause of the Sixth Amendment to the United States Constitution applies to detention hearings; and (ii) whether the Court should vacate the Magistrate Judge's Order of Detention detaining Defendant Tayde Hernandez, set bond, and release him to the third-party custody of his wife or brother with conditions of release. The Court concludes that the Confrontation Clause does not preclude hearsay testimony at detention hearings. The Court further concludes that the United States has shown by a preponderance of the evidence that T. Hernandez is a flight risk and by clear-and-convincing evidence that he is a danger to the community. The Court therefore denies his Appeal.

FACTUAL BACKGROUND

The Pretrial Services report indicates that T. Hernandez is a naturalized citizen. T. Hernandez contends that he is legitimately employed. He has six siblings, and they and his parents all reside in New Mexico. T. Hernandez is married and has three daughters. T. Hernandez' wife is Maria Meza–Hernandez.

The Court takes the following facts from Drug Enforcement Agency Agent Richard Stark's affidavit, which is attached the Criminal Complaint, filed February 23, 2011 (Doc. 1). On February 2, 2011, two Confidential Informants (“CI–1” and “CI–2”) contacted Middle Rio Grande Valley Task Force Agents Clarence Davis and Frank Chavez regarding a possible two kilograms buy-bust from a subject known to CI–1 as T. Hernandez. CI–1 stated that T. Hernandez is the owner of Mariscos Los Arcos restaurant located at 7900 Zuni S.E., Albuquerque, New Mexico.

CI–1 further stated that, on February 2, 2011, CI–1 told T. Hernandez, that CI–1 was in Albuquerque to purchase kilogram quantities of cocaine. CI–1 stated to T. Hernandez that CI–1 had purchased one kilogram of cocaine, but still had funds to purchase two additional kilograms. T. Hernandez told CI–1 to meet with him at the restaurant the following morning and that T. Hernandez would supply CI–1 with the two kilograms.

On February 3, 2011, Chavez and Davis met with CI–1 and CI–2. Davis showed CI–1 a driver's license photograph of T. Hernandez. CI–1 identified the person in the photograph as T. Hernandez. Davis then provided CI–2 with a monitoring device. Both CI–1 and CI–2 were searched, and the agents confirmed they had no money or contraband on them. Both CIs were followed to 7900 Zuni S.E., where both CIs entered the restaurant.

Once inside the restaurant, agents heard CI–1 talking to an unknown female and asking for T. Hernandez. The female stated that T. Hernandez had already left for the day. The female contacted T. Hernandez via telephone and handed the phone to CI–1 who spoke to T. Hernandez. Both CIs exited the restaurant and were followed to a pre-arranged location. CI–1 stated that it spoke to T. Hernandez via telephone from inside the restaurant and that T. Hernandez said he was in Los Lunas, New Mexico with his horses. CI–1 said that T. Hernandez requested CI–1 to return to the restaurant tomorrow at 9:00 a.m. to discuss the transaction. CI–1 said that T. Hernandez is very cautious and will not talk about narcotics over the phone.

On February 4, 2011, the agents met with CI–1 and CI–2, and again, both CI's were searched. No money or contraband were found on them. Davis provided CI–2 with a monitoring device. The agents then followed the CIs to 7900 Zuni S.E., Mariscos Los Arcos Restaurant. Shortly thereafter, CI–1 and CI–2 left the business and were followed directly to a pre-arranged location, where both CIs were interviewed.

CI–1 and CI–2 stated T. Hernandez was in a white Chevrolet truck bearing New Mexico license plate LFT916 awaiting their arrival in the parking lot of the Mariscos Los Arcos Restaurant. An inquiry on LFT916 revealed the 2008 Chevrolet truck was registered to T. Hernandez or Maria Gustavo at 1651 Shadyside S.W. in Albuquerque. CI–1 and CI–2 said that T. Hernandez was going to wait until 4:00 p.m. to get the drugs. CI–1 told T. Hernandez that it had the money and asked if it could get the drugs by 4:00 p.m. T. Hernandez said he would call CI–1 back at 1:00 p.m.

At approximately 12:30 p.m., CI–1 and CI–2 contacted Davis and told him that T. Hernandez had contacted CI–1 and requested a meeting. The CIs told T. Hernandez they were at the Isleta Casino. T. Hernandez told the CI–1 he would meet them at the casino.

At approximately 1:20 p.m., agents from the Middle Rio Grande Valley Task Force arrived at the Isleta Casino and established surveillance. CI–2 told Davis that T. Hernandez was inside the casino meeting with CI–1. Davis and Chavez met with CI–2 in the parking lot, and provided CI–2 with a monitoring/recording device. CI–2 went back into the casino. Agents located T. Hernandez' white 2008 Chevrolet truck parked unoccupied in the north parking lot, east of the portable security buildings. Chavez was able to install a tracking device.

At approximately 1:35 p.m., Chavez and Davis observed CI–1 and CI–2 exiting the casino. Agents followed the informants to a pre-arranged location where Davis debriefed them. CI–1 and CI–2 said that T. Hernandez told them to meet at 6:00 p.m. at the Accessories Mexico and they would complete the deal. While the debriefing was occurring, another agent continued surveillance on T. Hernandez' truck and followed T. Hernandez when he left the casino; T. Hernandez drove to his residence, then to the Auto Zone on Isleta Blvd. S.W. in Albuquerque. T. Hernandez then returned to his residence at 1651 Shadyside S.W.

Middle Rio Grande Valley Task Force members conducted a briefing regarding the buy/bust which was to occur. The CIs were to drive to the Accessories Mexico located at 2723 Isleta Blvd. S.W. and contact T. Hernandez via cellular phone. The deal would possibly take place there in the parking lot as T. Hernandez had told both CIs earlier.

At approximately 4:00 p.m., CI–1 told Davis that T. Hernandez had just called, and requested CI–1 meet now and conduct the transaction. Agents conducted a second briefing with CI–1 and CI–2. CI–2 was given a monitoring device, and the CIs were told that once they saw the cocaine, they were to give a pre-determined bust signal. Both CIs were searched. No money or contraband were located. At approximately 5:05 p.m., Chavez directed CI–1 to contact T. Hernandez via cellular phone, which CI–1 did. T. Hernandez gave CI–1 directions to his residence located at 1651 Shadyside S.W., where the transaction would occur.

At approximately 5:08 p.m., agents followed CI–1 and CI–2 directly to 1651 Shadyside S.W. Agents observed both CIs walking towards the residence. Agents were monitoring the conversation from a field just east of 1651 Shadyside S.W. At approximately 513 p.m., CI–2 gave the pre-determined bust signal indicating the CIs had seen the cocaine. Agents drove to the residence and entered the back yard where T. Hernandez and both CIs were taken into custody. T. Hernandez and the CIs were standing next to a maroon Ford Expedition. All four doors of the Ford Expedition were open. An inquiry on the truck's license plate, FSS534, returned to a 2001 Ford Expedition registered to Rita Garcia and Linda Carreon at 4209 Comanche N.E. in Albuquerque. Agents then secured the residence at 1651 Shadyside S.W. Located inside were two children and M. Hernandez.

Chavez and Davis interviewed T. Hernandez, who stated that the two subjects were looking at the Ford Expedition and possibly going to purchase the vehicle. Davis asked T. Hernandez if there were any narcotics in the vehicle or his residence. T. Hernandez said “No.” T. Hernandez admitted to having several firearms.

Agents then spoke to CI–1, who stated the cocaine was under the front passenger seat of the Ford Expedition. Chavez walked to the Ford Expedition and under the front passenger seat was a heat sealed plastic bag containing a white substance. Chavez then obtained a State District Court search warrant for the residence, the maroon Ford Expedition, and the white Chevrolet truck that T. Hernandez was driving throughout the day.

Chavez and Davis interviewed M. Hernandez regarding her knowledge of drug trafficking. Davis translated Spanish to English. M. Hernandez said that she has no knowledge of her husband's cocaine trafficking. When questioned about their finances, M. Hernandez said that she is employed at Mariscos Los Arcos Restaurant along with her husband and that she does not get paid, because the restaurant is not making any money. M. Hernandez was questioned about her husband and she stated that he does not collect a salary from the restaurant either. M. Hernandez said that T. Hernandez also works at Carco, which is a car lot off Zuni S.E.

M. Hernandez was then questioned about numerous properties listed in her name in Valencia County, New Mexico. M. Hernandez said they are vacant lots; 1/3 acres in size, which T. Hernandez purchased at an auction. Agents located approximately twenty-five letters from the association regarding the lot. Agents then questioned M. Hernandez about her residence and another residence in her name located at Doty S.W. M. Hernandez said that her house payments were around $1,000.00 a month and the other residence was M. Hernandez' parents. M. Hernandez was...