United States v. Ellis DeMarchena

• Decision Date: 23 August 1971
• Docket Number: Cr. No. 11658.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. D'Annunzio y ELLIS DeMARCHENA, Defendant.

330 F. Supp. 1223

UNITED STATES of America, Plaintiff, v. D'Annunzio y ELLIS DeMARCHENA, Defendant.

Cr. No. 11658.

United States District Court, S. D. California.

August 23, 1971.

Harry D. Steward, U. S. Atty., Catherine Chandler, Joseph A. Milchen, Ass't U. S. Attys., San Diego, Cal., for plaintiff.

Ramon Castro of Sheela, Lightner, Hughes & Castro, San Diego, Cal., for defendant.

MEMORANDUM OPINION

TURRENTINE, District Judge.

This proceeding raises a question of first impression in this circuit: whether the court may in an appropriate case look behind an otherwise acceptable corporate surety appearance bond to ascertain the source of the collateral and determine whether there is some personal moral compulsion assuring the presence of the defendant at further proceedings. This memorandum opinion embodies the court's findings of fact and conclusions of law.

I. Background.

On July 14, 1971, the Federal Grand Jury for the Southern District of California returned an indictment in the above entitled matter, charging the defendant D'Annunzio y Ellis DeMarchena in Count One with a violation of Title 21, United States Code, Sections 952, 960 and 963, illegal importation of a controlled substance, to wit: 2,202 pounds of marijuana, and in Count Two with a violation of Title 21, United States Code, Section 841(a) (1), possession with intent to distribute a controlled substance, said marijuana. Bond was set by the court upon recommendation of the grand jury in the amount of $125,000 cash or corporate surety.

On July 23, 1971, the defendant's bond was reduced from $125,000 to $50,000 cash or corporate surety. The Magistrate's order reducing bail provided that if cash in the sum of $50,000 were deposited in the registry of the court, a hearing might be held to determine the source of the funds, but if a corporate bond were posted no further proceedings would be held.

On August 5, 1971, after the case had been transferred to the district court, the United States Attorney filed a motion to increase the bail and to examine the sureties on any bond proffered in the case.

On August 7, 1971, a corporate surety bond in the sum of $50,000 issued by National Automobile Casualty Insurance Co. was filed with the court. Thereafter hearings were held on August 11, 17 and 19 to inquire into the circumstances surrounding the proffering of the bond.

On July 9, 1971, the defendant Ellis DeMarchena, a citizen of the Dominican Republic, entered the United States from Mexico at the Port of Entry, San Ysidro, California. The defendant was the driver and sole occupant of a 1964 International camper truck, California license #46864H, Mexico license #HR974. Defendant gave a negative customs declaration to the immigration inspector at the primary inspection lane. A search of the truck at the secondary inspection area revealed a plywood wall at the front of the interior of the truck behind which were concealed approximately 1001 kilo packages of marijuana.

Defendant was placed under arrest and advised of his constitutional rights. Defendant thereafter stated he was the owner of the truck and had owned it for approximately 6 months. He claimed to be employed by Caliente Race Track earning $96 a week and that he would, on occasion, rent his truck out for $10 a day. Defendant had in his possession a personal check book from the Banco de Comercio, Baja, California, S.A. The check stubs indicate that checks totaling approximately $18,233 had been written from January 1971 to date.

The 1001 kilos of marijuana had an approximate cost in Mexico of $35,000 and sale value of approximately $125,000 in the Southern California market.

On July 9, 1971, the defendant appeared before the Magistrate and executed under oath CJA form 2 wherein he represented to the court that he was employed earning $150 per week, had three dependents, $100 in the bank and owned an automobile of the possible value of $1000. Thereafter the Magistrate determined the defendant was an indigent and appointed counsel.

On July 23, the defendant appeared in the Magistrate's court with retained counsel, and appointed counsel was discharged. At this hearing, bail was reduced from $125,000 to $50,000.

II. Evidence Produced at the Hearing.

On August 17, 1971, the agent for the surety, National Automobile Casualty Insurance Company, testified substantially as follows.

On August 2, 1971, he was first contacted by defendant's present attorney regarding issuing a bond. On the same day he visited the defendant in custody, and advised him that he was working on the bond.

Four days later, on August 6, 1971, a woman, accompanied by a Latin male, appeared at the business office of the bail bondsman. She identified herself as the wife of the defendant. She produced no documentary identification, nor was any request to substantiate her claim as the defendant's wife made. The woman was approximately 50 years of age, 5' 2" or 5' 3" in height, with a heavy build, of Mexican extraction, and had very little command of the English language. The male accompanying the female was never identified, either by himself or by the woman.

The woman had in her possession $55,000 in the form of United States currency. It consisted of bills in denominations of $10, $20, $50 and $100, held together by rubber bands. The money was contained in an 8" × 8" cardboard box, bearing the trademark "Hallmark," a gift card company. The bondsman immediately took his premium of $5000, and the remaining $50,000 was converted into a cashier's check and forwarded to the surety. At no time was there ever any indication of the source of the money.

Defendant did not take the witness stand at the hearing on August 17, 1971. Counsel for defendant advised the court that he had been in contact with the wife of the defendant; she indicated that she was in Mexico, and her health was such that it would be impossible for her to travel into the United States to testify on this matter.

At the hearing, the defendant presented no evidence by way of oral testimony or sworn affidavits concerning his family ties, roots in the community, character, mental condition, place of residence, or record of appearance at court proceedings, if any.

The court takes judicial notice of the records of this court which reflect that between June 15, 1971, and July 19 of this year there have been six forfeitures of cash or corporate surety bonds totaling $200,000. The six cases, and the case at bar, are strikingly similar in that all involved the smuggling of a controlled substance, all arrests were made at or near the international border, and all defendants were aliens.

The hearing was continued for two days to permit the defendant to present additional information relative to his background. At the second hearing, defendant's attorney advised the court that defendant's wife was still ill, although no evidence of her incapacity was introduced. A passport photograph of the defendant's wife was submitted, which shows her to be in her mid-thirties, of very slight build. Based on this evidence, the court finds that the woman who posted the collateral with the bondsman was not the defendant's wife.

III. The...