U.S. v. Ruiz-Corral

• Decision Date: 29 September 2004
• Docket Number: No. 04-1189-M, CR.A.,No. 04-CR-404-F.,04-1189-M, CR.A.,04-CR-404-F.
• Citation: 338 F.Supp.2d 1195
• Parties: UNITED STATES of America, Plaintiff, v. Hebert RUIZ-CORRAL and Jesus Borjas-Alvarez, Defendants. United States of America, Plaintiff, v. Jesus Borjas-Alvarez, Isaul Villalobos-Ruiz, and Herber Ruiz-Corral, Defendants.
• Court: U.S. District Court — District of Colorado

Page 1195

338 F.Supp.2d 1195

UNITED STATES of America, Plaintiff, v. Hebert RUIZ-CORRAL and Jesus Borjas-Alvarez, Defendants.

United States of America, Plaintiff, v. Jesus Borjas-Alvarez, Isaul Villalobos-Ruiz, and Herber Ruiz-Corral, Defendants.

No. 04-1189-M, CR.A.

No. 04-CR-404-F.

United States District Court, D. Colorado.

September 29, 2004.

Wayne Campbell, United States Attorney's Office, Denver, CO, for Plaintiff.

Donald L. Lozow, Lozow & Lozow, P.C., Edward A. Pluss, Federal Public Defenders Office, Denver, CO, David T. Duran, Duran Law Office, Englewood, CO, for Defendants.

ORDER ON REVIEW OF MAGISTRATE'S ORDER ON DETENTION MOTION

FIGA, District Judge.

This matter comes before this Court pursuant to the motion filed by the Government on September 17, 2004 (Dkt.# 18), pursuant to 18 U.S.C. § 3145(a)(1), seeking revocation of the order entered by the Magistrate Judge on September 17, 2004, which order allowed for the release, with special conditions, of Defendant Jesus Borjas-Alvarez. The special conditions included the posting of a $75,000 property bond, and the placement of the defendant on electronic monitoring.

On September 17, 2004, the Government filed an emergency motion requesting review of the order pursuant to 18 U.S.C. § 3145, and requesting a stay of the release order. By order entered September 21, 2004, this Court granted the request for a stay, and set the request for review for hearing on September 24, 2004. The hearing was conducted on September 24, 2004, at which time the Court heard argument from both counsel. The Court has subsequently had an opportunity to conduct a full review of the transcript of the hearing held before the Magistrate Judge on September 17, 2004, to consider the arguments of counsel and to review the applicable law.

This Court concludes that the release order of the Magistrate Judge should be REVOKED and that Defendant Borjas-Alvarez should remain in custody pending trial for the following reasons.

If this Court were to apply a deferential standard to the order of the Magistrate Judge and be bound only by the record before him, this Court might be inclined to leave his order in place. However, under 18 U.S.C. § 3145(a)(1), the district court makes its own de novo determination of the facts with no deference to the magistrate judge's findings or conclusion. United States v. Koenig, 912 F.2d 1190, 1191-92 (9th Cir.1990); United States v. Cruickshank, 150 F.Supp.2d 1112, 1113 (D.Colo.2001); United States v. Walters, 89 F.Supp.2d 1217, 1219-20 (D.Kan.2000).

De novo review does not require a de novo evidentiary hearing. The district court may elect to "start from scratch" and follow the procedures for taking relevant evidence or it simply may incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. United States v. Poole, 2004 WL 1732306 *1 (D.Kan., July 15, 2004). The district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, supra, 912 F.2d at 1193. These matters are left to the district court's sound discretion. United States v. Bergner, 800 F.Supp. 659, 661 (N.D.Ind.1992). Because this Court reviews the Magistrate Judge's order de novo, it will and must take into account any additional information and circumstances put before this Court that may not have been presented to the Magistrate Judge.

On September 22, 2004, after the decision of the Magistrate Judge to allow release, this defendant, along with two others, was indicted for violations of 21 U.S.C. § 846, conspiring with intent to possess and distribute five kilograms or more of methamphetamine, 21 U.S.C. § 841(a), possession with intent to distribute five kilograms or more of methamphetamine, and 18 U.S.C. § 924(c), possession of a firearm during and in relation to a drug trafficking crime.

The Bail Reform Act of 1984, particularly 18 U.S.C. § 3142(e), provides a rebuttable presumption of risk of flight or danger to the community in certain cases: "Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act (21 U.S.C. 801 et seq.) ...." A grand jury indictment provides the requisite probable cause necessary in 18 U.S.C. § 3142(e) to trigger the presumption. United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir.1990).

This Court notes that in the instant case, the defendant had not been indicted when the Magistrate Judge found that release was feasible. The indictment in this case charges offenses for conspiracy and possession with intent to distribute a substantial amount of methamphetamine. According to the Government, the seized drugs are believed to be of the highest quality of methamphetamine known as "ice." Although the laboratory tests of the contraband have not yet been received, the case against the defendant alleges that it was his plan and intent to sell the high quality methamphetamine and the alleged sums involved in the transaction tend to corroborate that. Consequently, this indictment, carries with it a potential penalty of incarceration of between 188 and 235 months for the alleged drug offenses, plus a potential additional 60 months for the alleged weapons offense.

Under the provisions of 18 U.S.C. § 924(c)(1)(D)(ii), any term of imprisonment imposed for this offense must run consecutively with any term that may be imposed for the alleged drug trafficking offense. These potential penalties, approaching a maximum of twenty-five years, are more than twice in excess of the potential maximum ten-year term necessary to trigger the statutory presumption, and therefore the indictment here raises a rebuttable presumption of risk of flight and danger to the community.

In United States v. Stricklin, 932 F.2d 1353 (10th Cir.1991) the Tenth Circuit outlined the impact of the statutory presumptions:

Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding 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 produced. 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.

Stricklin, supra, 932 F.2d at 1354-55 citing United States v. Cook, 880 F.2d 1158, 1162 (10th Cir.1989).

Although the defendant has the burden of coming forward with evidence to rebut the presumption, the government continues to bear the ultimate burden of proof "to show there is no condition or combination of conditions that would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community." Poole, supra, 2004 WL 1732306 *2, citing to United States v. Lutz, 207 F.Supp.2d 1247, 1251 (D.Kan.2002). The government must prove risk of flight by a preponderance of the evidence, United States v. Carlos, 777 F.Supp. 858, 860 (D.Kan.1991) (citing Quartermaine) and dangerousness to any other person or the community by clear and convincing evidence. 18 U.S.C. § 3142(f).

According to 18 U.S.C. § 3142(g), when determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, the district court must take into account the available information concerning:

(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,...