United States v. Colorado-Cebado, A-13-CR-458 DEW
| Decision Date | 30 October 2013 |
| Docket Number | No. A-13-CR-458 DEW,A-13-CR-458 DEW |
| Parties | UNITED STATES OF AMERICA v. FRANCISCO AGUSTIN COLORADO-CEBADO (2) |
| Court | U.S. District Court — Western District of Texas |
Before the Court is the Government's Motion for Detention (Dkt. No. 5), Francisco Colorado-Cebado's Request for Bail (Dkt. No. 26), the United States' Response to Defendant's Request for Bail (Dkt. No. 45), Francisco Colorado-Cebado's Reply Concerning His Request for Bail (Dkt. No. 46), the United States' Supplemental Response to Defendant's Request for Bail (Dkt. No. 47), and Colorado-Cebado's Reply to the Supplemental Response (Dkt. No. 49).
In its original motion, the United States sought detention of Colorado-Cebado, contending he posed a serious risk of flight. Both orally in open court, and in its response and supplement, the Government expanded the grounds for detention to include the allegation that Colorado-Cebado's release would pose a risk of danger to the community. See United States' Response at 1 (Dkt. No. 45). In accordance with the Bail Reform Act, a detention hearing was held on October 7, 2013, at which the parties presented testimony and legal argument. In addition to the evidence and arguments presented at that hearing, I have considered the briefing of the parties and the additional materials presented with that briefing, as well as the report of the Pretrial Services Office. Based on all of the above, I conclude by a preponderance of the evidence that there are no conditions I could set that would reasonably assure Colorado-Cebado's appearance as required, and will therefore order that he be detained pending trial in this case.
Colorado-Cebado is charged by indictment with conspiring to bribe a public official, in violation of 18 U.S.C. § 371, and bribery of a public official, in violation of 18 U.S.C. § 201. In brief, the indictment alleges that the he, in concert with others, conspired to, and actually did, offer to pay $1.2 million to a United States District Judge in exchange for a reduced sentence for his father, Francisco Colorado-Cessa, who on May 9, 2013, was convicted by a jury of conspiring to commit money laundering, and sentenced on September 6, 2013, to 20 years of imprisonment.
Colorado-Cebado is a 25 year-old citizen of Mexico. At the time of his arrest he was residing in Mexico, but he has regularly traveled from Mexico to visit his father since the time of his father's arrest and detention in 2012. He was present in the United States on a tourist visa when arrested, but that visa has since been revoked. His step-mother and half-brother live in Houston, though they do not have residency in the United States, but rather are on immigration bonds pending rulings on asylum petitions. As noted, Colorado-Cebado's father is in the custody of the U.S. Marshal awaiting trial on the instant case, and as a result of his conviction on the money laundering charge. The remainder of Colorado-Cebado's immediate family, including his mother and grandmother (with whom he resides), live in Poza Rica,Veracruz, Mexico. He has resided in the United States on two occasions—first, for three months in 2007 in Houston, and then for approximately one year in 2009 in Edinburg, to study English it appears. It is unclear how, if at all, Colorado-Cebado is currently employed, other than assisting in the continued business dealings of his father, as detailed below. He informed the Pretrial Office that he was a student, though he declined to elaborate on that. His step-mother told the Pretrial Office that he is an engineering student in Monterrey, Mexico. Colorado-Cebado, however, told the officer that he resides in Poza Rica, which is approximately 450miles from Monterrey. The Court was presented no tangible evidence that Colorado-Cebado is enrolled in any courses at any college in either the United States or Mexico.
Before focusing on the specifics of this case, a few preliminary notes are appropriate. As Colorado-Cebado points out, the Bail Reform Act begins with the general presumption that a defendant will be released at his initial appearance. Unless more is required to assure the defendant's appearance or the public's safety, the release must be on the defendant's own recognizance. If not on his own recognizance, the person is to be released on the minimum conditions necessary to ensure his appearance and the public's safety. And only when there is no combination of conditions that would reasonably assure a person's appearance or the public's safety may the person be detained. Further, a person's immigration status (or more accurately, his lack of status) is not an impediment to release. Rather, when—as here— a defendant is not a citizen or permanent resident of the United States, the detention hearing is delayed for up to 10 days to allow the immigration authorities time to initiate removal proceedings if they so desire. But if officials "fail[ ] or decline[ ] to take such person into custody during that period," then the court is directed to treat the defendant "in accordance with the other provisions of [the Bail Reform Act], notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings." 18 U.S.C. § 3142(d). In other words, a non-citizen, non-resident defendant who is not taken into custody by immigration authorities is to be treated like any other defendant for release purposes. This does not mean, however, that a court is prohibited from considering the defendant's immigration status or nationality as one of the factors in its analysis, as the Act directs the judge to consider the "history and characteristics of the person," including his "length of residence in the community" and "community ties." Id. at § 3142(g)(3)(A).
Applying these legal principles here is a bit different than usual, however, given Colorado-Cebado's release proposal. He asks that the Court release him into the custody of a private security firm, to be held under armed guard in an extended stay-type hotel or apartment. He would only be permitted to leave when approved by the Pretrial Office, and then still under guard and with a GPS monitor. He would have restrictions on his internet access and phone usage (incoming and outgoing calls only as approved), and only have visitors as approved by the Pretrial Office, with notice to the Government. An ordinary 25 year-old student would not make such a proposal.
And Colorado-Cebado is not an ordinary 25 year-old. As noted earlier, his father, Francisco Colorado-Cessa, was convicted in May on a money laundering charge. The jury in that case found that Colorado-Cessa had conspired to launder monies that were the fruits of the distribution of controlled substances, extortion, and bribery. See Jury Verdict in A-12-CR-210 SS (Dkt. No. 555). The evidence presented to support these charges was that the monies at issue in that case—tens of millions of dollars—derived from the Los Zetas Mexican drug cartel, and that Colorado-Cessa's Mexican company (ADT Petroservicios) operated as a conduit for the laundering of drug proceeds from the cartel's criminal operations. The Government has frozen, and has since had forfeited to it, over $25 million from Colorado-Cessa's UBS account in the United States, as well as two jet airplanes owned by ADT Petroservicios. A $60 million money judgment was also imposed against Colorado-Cessa based on the conviction. In short, Colorado-Cebado's father—who Colorado-Cebado has visited regularly since his arrest—is a multi-millionaire with documented strong ties to Los Zetas, and has been convicted of laundering large sums of money for Los Zetas. Colorado-Cebado cautions me not to conclude from such evidence that he is guilty of the charged bribery offenses, and urges me not to make him suffer for the sins of his father. That is not my intention.As he correctly notes, the law does not permit a finding of guilt based on who one associates with. E.g., United States v. Singleterry, 646 F.2d 1014, 1018 (5th Cir. 1981) (). Of course, at this point Colorado-Cebado is presumed innocent, so his guilt is not really a consideration. Rather, at this stage of the proceedings the question focuses on his risk of flight and any danger he poses to the community if released. And on those issues, Colorado-Cebado's associations are relevant factors for the Court to consider. As noted earlier, the Bail Reform Act instructs courts to consider an individual's history and characteristics in deciding whether to set conditions of release. As Judge Seyla stated in United States v. Tortora (cited by the Government), considering a person's Mafia ties in the context of a bail hearing is allowed, since doing so is judging the person "as he should be, as an individual, with one relevant characteristic being his devotion to the Mafia and his pledge to violate the law whenever necessary to further its end." United States v. Tortora, 922 F.2d 880, 885 n.6 (1st Cir. 1990). As Colorado-Cebado notes, there is no evidence here that he is as devoted to Los Zetas as Tortora was to the Mafia. I agree, but the general principle of Tortora remains relevant: the risks of releasing the person are to be judged based on the individual, and all of his characteristics. Here, that means that I cannot turn a blind eye to the evidence of Colorado-Cebado's devotion to his father, and the inferences I can draw when I take that devotion together with the evidence regarding his father's criminal business career.
Moreover, it is not simply the fact that Colorado-Cebado's father has strong ties to Los Zetas that causes me concern when I evaluate the risks Colorado-Cebado poses if released. Another reason that the father's criminal ties and conduct are relevant is that Colorado-Cebado is accused of attempting to (criminally)...
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