United States v. Fuentes-Correa
| Decision Date | 13 February 2013 |
| Docket Number | CRIM. NO.: 13-71(CCC/SCC) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. EDWIN FUENTES-CORREA, defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Defendant Edwin Fuentes-Correa is charged in a two-count indictment. Count one charges a violation of 21 U.S.C. § 841(a)(1); because of the amount of drugs charged, the violation carries a maximum penalty of 20 years. Defendant is also charged with a violation of 18 U.S.C. § 924(c)(1)(A), which carries a mandatory minimum of five years and a maximum of life in prison. Twice, we have attempted to hold a detention hearing in this case, and both times we have been stymied bya conflict that has a arisen between Defendant and the Government. Briefly, the Government wishes to proceed by proffer, and it does not intend to call the case agent to the stand; Defendant, meanwhile, wishes to question the case agent, and, to that end, has attempted to subpoena him. The Government has refused to produce the case agent, however, citing Defendant's failure to properly comply with Department of Homeland Security ("DHS") regulations for subpoenaing its employees; moreover, the Government asserts a broader right to control the testimony of its employees. Defendant has filed a motion to compel the case agent's testimony, and at the end of the most recent aborted detention hearing, he informed the Court that he would re-subpoena the case agent in compliance with the regulations.
Since then, we have not been informed whether a new subpoena has been served, nor, if it has, whether the Government has agreed to comply. Accordingly, we take up the motion to compel and offer some guidance and direction to the parties.
At the detention hearing, there was some confusion over whether this was a presumption case for the purposes ofdetention. See 18 U.S.C. § 3142(e)(3). Having reviewed the matter, we conclude that both charges here trigger the presumption. See id. §§ 3142(e)(3)(A) (), 3142(e)(3)(B) (). Thus, the presumption is certainly triggered in this case (especially now that an indictment has been returned).
It is important to note, however, that even where the § 3142(e) presumption arises, as it does in this case, the ultimate burden to persuade the court that detention is proper remains at all times with the Government. See United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir. 1987) (per curiam) (); see also United States v. Agosto-Vives, 757 F. Supp. 2d 110, 113 (D.P.R. 2010) (). At the least, this means that the Government cannot simply do nothing and expect the presumption to do the Government's job for it.
Nonetheless, the defendant must rebut the presumption. Because his burden is of production, not persuasion, rebuttal means simply producing "some evidence" that he is not a danger to the community or a risk of flight. United States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985) (Breyer, J.) . But the production of evidence does not erase the presumption; instead, the court should weigh the facts of the case before it against the facts that Congress found in creating the presumption: "the fact that Congress has found that [drug] offenders, as a general rule, pose special risks of flight." Id.; see also id. ( . As it is described in a later case, once the defendant produces "some evidence" against the presumption, the court must still give the presumption evidentiary weight—"the amount depending on how closelythe defendant's case resembles the congressional paradigm."1 Palmer-Contreras, 835 F.2d at 18. The evidentiary weight of the presumption is balanced with the remaining factors provided in § 3142. Id.
Defendant has to present evidence to rebut the presumption, and the better evidence he presents, the less heavily the presumption will weigh against him. To this end, he wants to call the Government's case agent, whose testimony, he believes, will support his claim for release. The Government has so far refused to allow the case agent to testify, either on behalf of the Government or Defendant. Below, we outline the basis for the Government's denial, as well as how the doctrine relates to detention hearings.
Touhy was a federal habeas petition related to a state-court conviction. United States ex rel. Touhy v. Ragen, 340 U.S. 462, 463-64 (1952). In those proceedings, a subpoena was issued to an FBI agent requiring the production of certain documents. See id. at 464. The Government sought to quash the subpoena on the grounds that certain regulations relating to subpoenaing Department of Justice employees had not been followed. See id. Pursuant to those regulations, the FBI agent refused to testify and was held in contempt by the trial judge. See id. The Supreme Court agreed to hear the case, and it framed the question presented this way: may a subordinate of DOJ refuse to comply with a subpoena "on the ground that the subordinate is prohibited from making such submission by his superior" pursuant to a valid regulation. See id. at 467.
The Court held that the regulations were valid and that the agent properly refused to produce the papers. Id. at 468. In reaching this conclusion, the Court emphasized that, given the large amount of information in the Government's possession, procedures relating to the dissemination of that information make sense. See id. (). Touhy's bottom line, then, was relatively simple: the Attorney General had a general authority to regulate how his subordinates complied with subpoenas, and a district court could not hold a subordinate in contempt for complying with those regulations.
It's important to take into account what the Court in Touhy did not say. Crucially, it reserved decision on the question of "whether or on what conditions, or subject to what disadvantages to the Government," the Attorney General could "refuse to produce government papers under his charge." Id. at 469. Likewise, the Court reserved the question of "the effect of a refusal to produce in a prosecution by the United States."2 Id. at467. In a forceful concurrence, Justice Frankfurter expanded on the significance of these reservations. He wrote that the Court's opinion in Touhy cannot be read as suggesting that "the Government can shut of an appropriate judicial demand for" relevant evidence in its possession. Id. at 472 (Frankfurter, J., concurring). Expanding on that notion, he wrote that while the Attorney General could certainly issue regulations commanding his employees with regard to the handling of the Government's information, such a right was contingent on his being available to answer for those decisions. See id. ( ). In answering, the Attorney General could raise issues of privilege, but he could not simply refuse production. See id. at 473.
Here, we are dealing with Touhy regulations promulgated by the Department of Homeland Security. The authority for these regulations is found in what is called the Housekeeping Act. That Act permits the heads of an executive department to "prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property." 5 U.S.C. § 301. Importantly, however, the Act makes clear that it "does not authorize withholding information from the public or limiting the availability of records to the public." Id.
The DHS regulations prohibit any employee or former employee of the Department from providing, "in connection with any litigation," "oral or written testimony by deposition, declaration, affidavit, or otherwise concerning any information acquired while such person is or was an employee of the Department . . . unless authorized to do so by the Office of General Counsel." 6 C.F.R. § 5.44(a). Litigation is defined toinclude criminal prosecutions initiated by the Government. Id. § 5.41(d) (defining "litigation"). Summonses addressed to a DHS employee must be served on the Office of General Counsel. Id. § 5.42(a). With the subpoena, the requesting party must include a written...
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