United States v. Cobix-Espinosa

• Decision Date: 09 February 2023
• Docket Number: 3:23-cr-00002-GFVT-MAS
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. EMILIO COBIX-ESPINOZA, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

UNITED STATES OF AMERICA, Plaintiff, v. EMILIO COBIX-ESPINOZA, Defendant.

No. 3:23-cr-00002-GFVT-MAS

United States District Court, E.D. Kentucky, Central Division, Frankfort

February 9, 2023

DETENTION OPINION & ORDER

MATTHEW A. STINNETT, UNITED STATES MAGISTRATE JUDGE.

The Indictment alleges that Defendant Emilio Cobix-Espinosa (“Cobix-Espinosa”) illegally re-entered the United States in violation of 8 U.S.C. § 1326(a). [DE 1]. The United States orally sought a detention hearing under 18 U.S.C. § 3142(f)(2)(A), arguing that this case involves a serious risk that Cobix-Espinosa will flee. [DE 10]. As discussed below, the Court now orders Cobix-Espinosa's detention because no condition or combination of conditions will reasonably assure Cobix-Espinosa's appearance as required in this matter. 18 U.S.C. § 3142(e).

I. BACKGROUND

At Cobix-Espinosa's initial appearance, the United States moved for a detention hearing under 18 U.S.C. § 3142(f)(2)(A). [DE 10]. The Court conducted a detention hearing under § 3142(e). [DE 15]. At the hearing, the United States primarily argued that detention was mandated because no set of conditions could assure Cobix-Espinosa's appearance in this matter as required. Both parties proffered evidence in support of their position and the United States presented the testimony of United States Bureau of Immigration and Customs Enforcement (ICE) Officer William Moss (“Officer Moss”). [DE 16]. The Court took the ultimate issue of Cobix-Espinosa's detention under advisement.

II. ANALYSIS

When the United States moves to detain a defendant pending trial, the Court conducts a two-step inquiry under the Bail Reform Act (“BRA”). See, e.g., United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988); United States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. 2017). First, the Court must determine whether a detention hearing is even permissible under § 3142(f). “Congress did not intend to authorize preventative detention unless the judicial officer first finds that one of the section 3142(f) conditions for holding a detention hearing exists.” United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988). See also United States v. Hardon, No. 98-1625, 1998 WL 320945, at *1 (6th Cir. June 4, 1998); United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988); United States v. Byrd, 969 F.2d 106 (5th Cir. 1992). Second, if one of the § 3142(f) conditions for holding a detention hearing exists, § 3142(e) directs the Court to conduct a detention hearing and determine whether any condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other person and the community. 18 U.S.C. § 3142(e). In making that determination, the Court must consider the factors outlined in § 3142(g).

At first glance, this analysis appears simple. However, anyone with experience with the BRA will tell you the statute functions more like a twisting labyrinth than an easily navigated roadway. In this case, the Court must determine the scope of the detention-hearing inquiry under § 3142(e) when that hearing is authorized solely on the basis that the defendant poses a serious risk of flight under § 3142(f)(2)(A).

A. Inquiry 1: Is the United States Entitled to a Detention Hearing?

At step one, the Court determines whether the United States is entitled to a detention hearing under § 3142(f). That section “does not authorize a detention hearing whenever the government thinks detention would be desirable, but rather limits such hearings to the [circumstances listed in (f)(1) and (f)(2)].” Ploof, 851 F.2d at 9-10. Subsection (f) serves to strictly limit the cases in which the United States can request a detention hearing.^[1] United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992). See also United States v. White, No. 3:21-MJ-04070, 2021 WL 2155441, at *5 (M.D. Tenn. May 27, 2021) (discussing the two-step process at length and concluding that under Sixth Circuit law “if [subsection (f)] circumstances are not present, a detention hearing (and, thus, detention) is simply unauthorized, regardless of how the Government would fare with respect to risk of non-appearance and danger to other persons or the community”).

Under (f)(1), the Government can move for pretrial detention in cases involving specified offenses, including crimes of violence, certain felonies involving minor victims or firearms, and high-penalty controlled-substance offenses, among others. See 18 U.S.C. § 3142(f)(1)(A)-(E). The Court must make a finding that the charged crime fits into one of the categories. United States v. Hardon, No. 98-1626, 1998 WL 320945, at *1 (6th Cir. June 4, 1998) (holding that the district court must make its own determination of whether the circumstances relied on by the Government actually exist under (f)(1)). If so, the United States may seek detention; if not, the United States must look to (f)(2).

Under (f)(2), either the Government or the Court can move for pretrial detention in cases involving a serious risk of flight or a serious risk of obstruction, witness tampering, or juror intimidation. § 3142(f)(2)(A),(B). The United States must demonstrate by a preponderance of evidence that such circumstances exist to be entitled to a detention hearing. United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988). See also White, 2021 WL 2155441, at *7.^[2] And the defendant may challenge that the United States has met that burden. See United State v. Lizardi-Maldonado, 275 F.Supp.3d 1284, 1289 (D. Utah 2017) (defendant “cannot now contest the United States' right to a detention hearing after previously submitting to the hearing and not contesting the basis for the hearing”).

In this case, the United States moved for a detention hearing under § 3142(f)(2)(A), which requires the Court to find that the defendant poses a serious risk of flight. Notably, the “risk of flight” under subsection (f)(2)(A) is different from the “risk of nonappearance” that subsection (e) directs the Court to assess at a detention hearing. See White, 2021 WL 2155441, at *10 (M.D. Tenn. May 27, 2021) (“'[I]t is clear that flight and nonappearance are not simply interchangeable names for the same concept, nor are they merely different degrees of the same type of risk. In the context of measuring and managing risks, many defendants who merely fail to appear differ in important ways from their fugitive cousins. Precision about these distinctions is constitutionally mandated and statutorily required.'”) (quoting Lauryn P. Gouldin, Defining Flight Risk, 85 U. Chi. L. Rev. 677 (2018)). Indeed, “risk of flight” is more correctly viewed as a specific type or subcategory of “risk of nonappearance.” See id. (“Flight risk is properly assigned to defendants who are expected to flee a jurisdiction. This is a small, and arguably shrinking, subcategory of a much larger group of defendants who pose risks of nonappearance.” (quoting Gouldin, supra, at 683)). Courts and litigants often ignore this distinction, likely because the distinction makes no practical difference in many cases. Id. But the distinction sometimes matters because evidence suggesting the defendant poses a general risk of nonappearance does not necessarily support a finding that the case involves a serious risk of flight under subsection (f), a risk that would contemplate a voluntary action by a defendant to flee. For example, as the Tenth Circuit explained, “one would not describe an individual who has been arrested at a crime scene and involuntarily transported to a police station as having fled the scene.” United States v. Ailon-Ailon, 875 F.3d 1334, 1338 (10th Cir. 2017). The difference between the general risk of nonappearance and the serious risk of flight, in some contexts, is stark. Certainly, the immigration context is one.

In support of its motion under § 3142(f)(2)(A), the United States proffered that Cobix-Espinosa is subject to an ICE administrative detainer. Cobix-Espinosa conceded that the United States had produced preponderant evidence that he was a serious risk of flight. So, the Court will look no further. See White, 2021 WL 2155441, at *6 (explaining that, when the defendant does not challenge the United States' right to a detention hearing, the defendant has arguably waived or forfeited the right to object to a hearing).

B. Inquiry 2: Are There Any Condition or Combinations of Conditions of Release that will Protect the Safety of the Community and Reasonably Assure the Defendant's Appearance at Trial?

At step two-after the Court has determined that the United States is entitled to a detention hearing under § 3142(f)-the Court must conduct a detention hearing to determine whether any condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any person and the community under § 3142(e). If no set of conditions can reasonably assure appearance and safety, the Court must order detention. § 3142(e). The Court considers the factors under § 3142(g) in making that determination.

1. The scope of evidence the Court can consider under § 3142(e) in a detention hearing authorized by § 3142(f)(2)(A)

Before turning to the ultimate issue of pretrial detention under § 3142(e), however, it is necessary to address the proper scope of the Court's inquiry under that provision where, as here, the detention hearing is authorized solely because the defendant poses a serious risk of flight under § 3142(f)(2)(A). That is, if the basis for holding a detention hearing is the defendant's serious risk of flight under § 3142(f)(2)(A), is the Court limited to considering only evidence of nonappearance that relates specifically to the risk of flight or, alternatively, can the Court consider the general risks of...