U.S. v. Holguin, CR 10–3093–006 JB.

• Decision Date: 02 June 2011
• Docket Number: No. CR 10–3093–006 JB.,CR 10–3093–006 JB.
• Citation: 791 F.Supp.2d 1082
• Parties: UNITED STATES of America, Plaintiff,v.Sandra HOLGUIN, Defendant.
• Court: U.S. District Court — District of New Mexico

791 F.Supp.2d 1082

UNITED STATES of America, Plaintiff,

v.Sandra HOLGUIN, Defendant.

No. CR 10–3093–006 JB.

United States District Court, D. New Mexico.

June 2, 2011.

Kenneth J. Gonzales, United States Attorney, Albuquerque, NM, Sarah M. Davenport, Elizabeth M. Martinez, Assistant United States Attorneys, United States Attorney's Office, District of New Mexico, Las Cruces, NM, for Plaintiff.Leon Schydlower, El Paso, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Notice of Appeal of Detention Order, filed March 15, 2011 (Doc. 330). The Court held an evidentiary hearing on May 11, 2011. The primary issue is whether the Court should vacate the Honorable Carmen E. Garza, United States Magistrate Judge's detention order, and release Defendant Sandra Holguin pre-trial on conditions. The Court grants Holguin's request for a hearing. Because, however, Plaintiff United States of America has proved, by a preponderance of the evidence, that Holguin is a flight risk, the Court affirms Judge Garza's Order denying Holguin conditions of release.

FACTUAL BACKGROUND

The United States Pretrial Services bail report reflects that Holguin is a citizen of Mexico and is presently a legal permanent resident of the United States. She is self-employed as a cosmetologist. Holguin has family in Juarez, Mexico. She is in her eighth month of pregnancy, and the father lives in Juarez. She also has four children that are United States citizens.

The bail report shows that Holguin's criminal history includes two convictions:

12/19/2006 pled guilty or no contest to three counts: driving with a suspended license; no proof of insurance; failure to yield; defendant sentenced to 90 days unsupervised probation on the first count; and was ordered to pay a fine, fees, and court costs for all three counts; two bench warrants were issued in the case: 6/9/2006 warrant for failure to appear; 4/17/2007 warrant for failure to pay.

03/25/2009 pled guilty or no contest, but it is uncertain if the plea was to all or only some of the four counts; driving with a suspended license; child not properly restrained; speeding; unlicensed driver; defendant remains pending sentence; two bench warrants were issued in this case: 12/20/2007 warrant for failure to appear; 5/7/2009 warrant for failure to appear (warrant remains active).

At the November 19, 2010 detention hearing, the United States proffered the results of a six-month crossing history for Holguin, as researched by a United States Border Patrol Agent, which indicated that, between May 24, 2010, and November 16, 2010—the six months proceeding her arrest—Holguin re-entered the United States from Mexico twenty-three times, most recently in October, 2010.

At the May 11, 2011 hearing, Drug Enforcement Agency (“DEA”) lead case agent Jerry Smith testified that the indictment against Holguin and her co-conspirators is the result of a lengthy investigation which included over four months of court-authorized Title III wiretap ¹ interception of six different telephones and video surveillance of three different residences. Smith testified that Holguin was repeatedly intercepted in conversations with co-Defendant Pablo Fuentes on his wiretapped telephone. DEA agents, on multiple occasions, intercepted Holguin and Fuentes using what Smith alleged was code to discuss cocaine and drug proceeds, and to make arrangements to meet to exchange drugs and money. Smith testified that, on at least one occasion, after one such telephone call, agents observed Holguin meeting Fuentes in a parking lot, where they exchanged a package. Smith testified that, based on the agents' observations and intercepted calls before and after the meeting, he believes that the Holguin delivered cocaine to Fuentes in exchange for money. Smith further testified that Holguin had contact with a higher ranking drug trafficker for whom she collected approximately $9,300.00 in drug proceeds and that Holguin was directed to see to it that the proceeds were delivered to Mexico.

Holguin's counsel, Leon Schydlower, exposed weaknesses in the United States' case against Holguin. Mr. Schydlower solicited concessions from Smith that: (i) he could not say by a preponderance of the evidence that Holguin's intercepted telephone conversations—which Smith asserts used terms related to automobiles as code to refer to drugs—were about drugs or drug proceeds, and not about automobiles, see Transcript of Hearing Tr. at 33:1–5 (taken May 11, 2011)(Schydlower, Smith)(“[Schydlower]: As far as you know it's more likely than not they were actually discussing a car ...? [Smith]: They could have been.”)(“Tr.”); ² (ii) Smith did not know whether Fuentes was the father of Holguin's children, see id. at 33:4–5 (Schydlower, Smith); (iii) Smith could not say by a preponderance of the evidence that a September 22, 2010 telephone call in which Fuentes and Holguin discussed money related to drugs or drug proceeds, see Tr. at 33:1–5 (Schydlower, Smith)(“[Schydlower]: [C]an you state beyond a preponderance ... whether that money had anything to do with drug, drug proceeds or whether it had to do with perhaps child support? [Smith]: No.”); (iv) Smith could not say what was in a package Fuentes and Holguin exchanged on September 23, 2010, see Tr. at 35:23–25 (Schydlower, Smith)(“[Schydlower]: You saw her give him some kind of bag you don't know what's in the bag? [Smith]: No.”); and (v) Smith could not tie the $9,300.00 in alleged drug proceeds to narcotics, see Tr. at 39:3–6 (Schydlower, Smith)(“[Schydlower]: Can you tie it to narcotics at all, Agent Smith? ... [Smith:] No.”).

PROCEDURAL BACKGROUND

On November 10, 2010, the Grand Jury returned a seven-count Indictment charging twenty-three people, including Holguin, with, among other things, conspiracy to possess with intent to distribute five kilograms and more of cocaine, contrary to 21 U.S.C. § 841(a)(1), and (b)(1)(A). On November 16, 2010, seventeen arrest warrants and seven search warrants were executed. Holguin was arrested on November 16, 2010. On November 17, 2010, Holguin had her initial appearance before Judge Garza. On November 18, 2010, Pretrial Services recommended pretrial detention in its bail report. On November 19, 2010, Holguin was arraigned and entered a plea of not guilty. Also on November 19, 2010, Judge Garza held a detention hearing, and she denied Holguin conditions of release. Judge Garza executed a Detention Order on November 22, 2010. See Doc. 125. Holguin moved Judge Garza to reconsider her Detention Order. See Amended Motion for Reconsideration of Detention Order, filed February 25, 2011 (Doc. 314). On March 1, 2011, Pretrial Services filed a Memorandum changing its recommendation to releasing Holguin into the custody of Virginia Estrada–Armendariz with conditions, including posting a $10,000.00 secured bond, pretrial supervision, and requiring that Holguin must seek and maintain employment and not travel outside of New Mexico. Judge Garza denied Holguin's Motion for Reconsideration. See Order Denying Amended Motion for Reconsideration of Detention Order, filed March 2, 2011 (Doc. 323).

Holguin appeals the order denying her conditions of release pursuant to 18 U.S.C. § 3145(b). Holguin requests that the Court review the order of detention that Judge Garza executed and allow her to live with an approved third-party custodian, at least during the pendency of her pregnancy. She submits that her children anchor her in the United States and contends, moreover, that electronic monitoring would adequately prevent her flight.

In advance of the hearing that Holguin requests and the Court scheduled for May 11, 2011, the United States on March 9, 2011, filed its Response to Defendant's Appeal of Pretrial Detention. See Doc. 338. The United States asks the Court to uphold Judge Garza's pretrial detention order. The United States argues that Holguin is a flight risk and danger to the community, and that there are no conditions or combination of conditions that can reasonably assure the safety of the community and her appearance for trial.

At the May 11, 2011 hearing, Holguin stated that her numerous crossings into Mexico were to see her grandmother, who is elderly and has been ill, and Holguin wanted to be close to her. See Tr. at 6:22–7:1 (Holguin). She testified that her she met her “baby's daddy” in El Paso and has lost contact with him while she has been detained pending trial. Tr. at 6:19–21 (Holguin). Holguin further testified that she was eight months pregnant at the time of the hearing and close to delivery. See Tr. at 7:2–5 (Holguin).

STANDARD OF REVIEW BY THE DISTRICT COURT

“The standard of review for the district court's review of a magistrate judge's detention or release order under § 3145(a) is de novo.” United States v. Cisneros, 328 F.3d 610, 616 n. 1 (10th Cir.2003). “When the district court acts on a motion to revoke or amend a magistrate's pretrial detention order, the district court acts de novo and must make an independent determination of the proper pretrial detention or conditions for release.” United States v. Rueben, 974 F.2d 580, 585–86 (5th Cir.1992). See United States v. Maull, 773 F.2d 1479, 1481 (8th Cir.1985) (stating that a district court's review of magistrate judge's order setting bond was de novo). “[I]t is within the district court's authority to review a magistrate's release or detention order sua sponte.” United States v. Cisneros, 328 F.3d at 616 (citing United States v. Spilotro, 786 F.2d 808, 815 (8th Cir.1986)).

STATUTORY PRESUMPTION AGAINST RELEASE

Pursuant to the Bail Reform Act, a defendant may be detained pending trial only after a hearing, held pursuant to 18 U.S.C. § 3142(f), and upon a finding “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. §...