United States v. Lizardi-Maldonado

• Decision Date: 28 June 2017
• Docket Number: Case No. 1:17–CR–35–RJS
• Citation: 275 F.Supp.3d 1284
• Parties: UNITED STATES of America, Plaintiff, v. Juan LIZARDI–MALDONADO, Defendant.
• Court: U.S. District Court — District of Utah

275 F.Supp.3d 1284

UNITED STATES of America, Plaintiff,

v.Juan LIZARDI–MALDONADO, Defendant.

Case No. 1:17–CR–35–RJS

United States District Court, D. Utah, Central Division.

Signed June 28, 2017

Rachel Marie McDonald, U.S. Attorney's Office, Salt Lake City, UT, for Plaintiff.

MEMORANDUM DECISION & ORDER GRANTING DEFENDANT'S MOTION FOR REVIEW OF DETENTION AND RELEASE ON CONDITIONS

EVELYN J. FURSE, United States Magistrate Judge

The Court GRANTS Defendant Juan Lizardi–Maldonado's Motion to Review Detention. Upon reopening the detention hearing, the Court finds the Government has not shown by a preponderance of the evidence that the Court cannot reasonably assure the appearance of Mr. Lizardi–Maldonado back at court by imposing a combination of conditions. Therefore, the Court ORDERS Mr. Lizardi–Maldonado released on the conditions set forth below.

I. MATERIAL CHANGE WARRANTING REOPENING OF DETENTION HEARING

On June 19, 2017, Defendant Juan Lizardi–Maldonado filed a Motion for Review of Detention based on his decision not to participate in the Fast Track program.¹ (ECF No. 10.) In this District, the United States Attorney's Office requires a defendant to consent to pretrial detention if he wishes to participate in the Fast Track program. At the initial appearance, the United States moved for a detention hearing pursuant to 18 U.S.C. § 3142(f)(2)(A), claiming Mr. Lizardi–Maldonado poses a serious risk of flight. In so moving, the United States proffered that it lodged an Immigration Detainer against Mr. Lizardi–Maldonado based on a final order of removal, that Mr. Lizardi–Maldonado had previously been deported four times, that Mr. Lizardi–Maldonado had a recent conviction for driving under the influence, and that Mr. Lizardi–Maldonado had no legal status in the United States and therefore lacks legitimate ties to the community.

Mr. Lizardi–Maldonado's counsel did not challenge either the proffer or detention and indicated he reserved his right to contest detention if Mr. Lizardi–Maldonado opted-out of the Fast Track program.

This Court granted the Motion for a Detention Hearing and detained Mr. Lizardi–Maldonado based on the weight of the evidence against the defendant, the fact that he is subject to removal or deportation after serving any period of incarceration, and that he has previously been deported four times, showing a willingness to navigate the border. (ECF No. 4.) Through its proffer, and the lack of opposition, the United States proved by a preponderance of the evidence that no condition or combination of conditions of release will reasonably assure Mr. Lizardi–Maldonado's appearance as required.

To reopen the issue of detention, the movant must demonstrate that information exists, not known to the movant at the detention hearing, "that has a material bearing on the issue" of release. 18 U.S.C. § 3142(f). In its opposition, the United States asserts that no longer participating in the Fast Track program does not constitute a change in circumstance. (United States' Resp. to Def.'s Mot. for Review of Det. 2, ECF No. 12.) Because the United States conditions participation in the Fast Track program on consent to detention, participation in the Fast Track program has a material bearing on the issue of detention. At the time of the detention hearing, Mr. Lizardi–Maldonado intended to participate in the program, and that fact has now changed. Therefore, Mr. Lizardi–Maldonado's decision not to participate in the Fast Track program constitutes a material change warranting a reopening of his detention hearing.

Also of note, Pretrial Services does not interview Fast Track participants or prepare a Pretrial Services Report prior to an initial appearance on a Fast Track case. Without that report, defense counsel and the Court lack any information about the defendant beyond that provided by the United States. Further, Fast Track initial appearances usually involve multiple defendants all represented by the same attorney who has approximately ten minutes prior to the hearing to meet with his clients to determine their willingness to participate in the Fast Track program.

II. BASIS TO HOLD A DETENTION HEARING

Mr. Lizardi–Maldonado argues that the United States cannot show Mr. Lizardi–Maldonado "poses a serious risk that [he] will flee," 18 U.S.C. § 3142(f)(2)(A). Mr. Lizardi–Maldonado does not contest the information the United States previously proffered to obtain a detention hearing. Rather, Mr. Lizardi–Maldonado contends that additional facts surrounding Mr. Lizardi–Maldonado make clear he does not pose a risk of flight. Thus, he contends, the Court cannot even hold a detention hearing to determine whether it should detain him.

The Court agrees that if it finds the threshold conditions under § 3142(f) have not been met, it cannot hold a detention hearing and thus cannot detain the defendant. The Third Circuit in United States v. Himler, 797 F.2d 156, 160 (3d Cir. 1986 ) quoted from legislative history of § 3142, stating that the § 3142(f)"circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial," permitting detention only "upon proof of a likelihood of flight, a threatened obstruction of justice or a danger of recidivism in one or more of the crimes actually specified by the bail statute."

In United States v. Ploof, 851 F.2d 7, 10–11 (1st Cir. 1988), the First Circuit held

[T]he structure of the statute and its legislative history make it clear that Congress did not intend to authorize preventive detention unless the judicial officer first finds that one of the § 3142(f) conditions for holding a detention hearing exists. To conclude otherwise would be to ignore the statement in the legislative history that the "circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial," see S.Rep. No. 225, 98th Cong., 2d Sess. 20, reprinted in 1984 U.S.Code Code & Admin.News 3182, 3203; see also United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697 (1987) ("The Bail Reform Act² carefully limits the circumstances under which [preventive] detention may be sought to the most serious of crimes"), and to authorize detention in a broad range of circumstances that we do not believe Congress envisioned.

See also United States v. Chavez–Rivas , 536 F.Supp.2d 962, 965–67 (E.D. Wis. 2008) ("Unless the case falls within one of the above categories in § 3142(f), the court may not detain the defendant."); see accord United States v. Rogers, 371 F.3d 1225, 1232 (finding certain charges fall within crimes of violence under § 3142(f)(1) and overturning district court's decision finding no entitlement to a detention hearing).

Neither side provides any guidance about the quantum of evidence needed to show a serious risk of flight sufficient to warrant the holding of a detention hearing.

Some of the information from the United States' proffer has changed. The United States now contends Mr. Lizardi–Maldonado had four prior removals from the United States rather than four prior deportations. The 1996 amendments to the immigration laws changed the term "deportation" to "removal". Padilla v. Kentucky, 559 U.S. 356, 364 n. 6, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Further, Mr. Lizardi–Maldonado's prior conviction for driving under the influence of alcohol occurred in 2002, not recently. Recently, in May 2017, Mr. Lizardi–Maldonado received another charge of driving under the influence of alcohol, but that case remains pending.

This Court finds Mr. Lizardi–Maldonado 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.

III. RISK OF NON–APPEARANCE BACK AT COURT FOR FURTHER PROCEEDINGS

The United States asserts that it has shown that Mr. Lizardi–Maldonado poses a risk of non-appearance back at court for further proceedings that the Court cannot manage under any condition or combination of conditions. The United States does not contend that Mr. Lizardi–Maldonado poses a risk of danger to the community. Mr. Lizardi–Maldonado contends he does not wish to leave the district and has a place to stay here with his family.

The Eighth Amendment prohibits the imposition of excessive bail. U.S. Const. amend. VIII. 18 U.S.C. § 3142 implements this guarantee and governs a defendant's release or detention pending trial. This statute requires the Court order the Defendant released on his own recognizance or on an unsecured bond pretrial, "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b). If the Court determines either personal recognizance or an unsecured bond will not reasonably assure either end, the Court must impose the least restrictive further condition that will reasonably assure the appearance of the defendant and the safety of the community. 18 U.S.C. § 3142(c)(1)(B). 18 U.S.C. § 3142(f) requires the court to hold a detention hearing on the government's motion when the alleged crime meets certain criteria, § 3142(f)(1), or on its own or the government's motion when the case involves "a serious risk that [the defendant] will flee," § 3142(f)(2)(A), or "a serious risk that [the defendant] will obstruct or attempt to obstruct justice, ...." If those conditions are met, the Court will hold a detention hearing. The Court shall order detention of the defendant pending trial if it finds "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). "The government must prove risk of flight by a preponderance of the evidence." United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). Importantly, nothing in the...