United States v. Pacheco
| Docket Number | 3:21-cr-00022-GFVT-MAS-1 |
| Decision Date | 17 December 2021 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. REINALDO PACHECO, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
DETENTION OPINION & ORDER
The Indictment alleges that Defendant Reinaldo Pacheco (“Pacheco”) twice possessed firearms as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [DE 1]. The United States orally moved for pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(E). [DE 8]. The Court conducted a detention hearing on December 6, 2021 and afforded both sides all procedural rights outlined in the Bail Reform Act (“BRA”). [DE 13]. The Government urged detention based on flight and danger risks, with its primary focus on the latter. Per Federal Rule of Appellate Procedure 9(a) and for the reasons discussed in this opinion the Court finds by clear and convincing evidence that available conditions cannot reasonably assure community safety under the circumstances. The BRA thus requires Pacheco's pretrial detention in this case.
Detention premised on nonappearance requires preponderant evidence of flight risk. See, e.g., United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991); United States v. Curry, No. 6:06-CR-82-DCR, 2006 WL 2037406, at *6 (E.D. Ky. Jul. 18, 2006). Danger-based detention demands clear and convincing evidence that no combination of conditions will reasonably ensure community safety. 18 U.S.C. § 3142(f). The analyses are distinct. Conditions that sufficiently target nonappearance risk may not adequately address danger potential. See United States v. Mercedes, 254 F.3d 433, 436-37 (2nd Cir. 2001). Further, condition effectiveness inherently hinges on a defendant's predicted good faith compliance. See United States v. Tortora, 922 F.2d 880, 887 (1st Cir. 1990) (); United States v. Hir, 517 F.3d 1081, 1092 (9th Cir. 2008) (); id. at 1093 n.13 ().
Evidence rules do not apply in the detention hearing context. 18 U.S.C. § 3142(f). The key is simply evidentiary reliability and accuracy. See, e.g., United States v. Webb, 149 F.3d 1185 (Table), No. 98-1291, 1998 WL 381686, at *1 (6th Cir. June 22, 1998). Given detention hearing informality, the Court properly considers a wide range of proof. The nature and quality of proof, however, impacts its probative value and weight in the detention calculus. The § 3142(g) factors ultimately drive the overarching analysis.[1]
The Court finds that, though Pacheco presents some flight and/or nonappearance risk, it could craft conditions to reasonably assure that he would not flee and that he would appear at future hearings. However, the Court further finds, by clear and convincing evidence, that it cannot assemble adequate conditions to reasonably assure community safety in light of the serious risk of danger that Pacheco presents. Pacheco thus must remain in custody pretrial based on danger risk.
In considering whether Pacheco presents an unmitigable flight risk, the Court first assesses “the nature and circumstances of the offense charged, including whether the offense . . . involves a . . . firearm[.]” 18 U.S.C. § 3142(g)(1). Though the alleged offenses involve unlawful firearm possession, the firearms in this case have no practical bearing on the flight analysis. There are no other offense circumstances that particularly indicate a risk of flight or nonappearance, and the parties did not argue any. This factor does not meaningfully favor detention.
The second factor the Court must consider is the weight of the evidence that Pacheco is a risk of flight or nonappearance. 18 U.S.C. § 3143(g)(2). See United States v. Sykes, No. 04-cr-80623, 453 F.Supp.3d 1011, 1015-16 (E.D. Mich. Apr. 13, 2020) (citing United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010)) ( that, in this Circuit, the § 3142(g)(2) factor looks only to the weight of the evidence that the defendant is a flight risk or a danger); accord United States v. Sanders, 466 F.Supp.3d 779, 785 (E.D. Mich. 2020). Because Pacheco's background largely supplies the facts relevant to the (g)(2) factor, the Court considers it in conjunction with the third and final flight factor, Pacheco's history and characteristics.[2] See 18 U.S.C. § 3142(g)(3). These factors collectively weigh in favor of finding some risk of nonappearance in this case.
There is certainly some evidence in Pacheco's background indicating that he may not appear for proceedings. He has several prior failures to appear within the last five years. [PSR at 4-5]. However, all are related to traffic offenses, as defense counsel emphasized. See, e.g., United States v. Munoz-Hernandez, No. CR 12-0128 JB, 2012 WL 5476892, at *11 (D. N.M. Nov. 5, 2012) (). Indeed, it appears that Pacheco has appeared on all proceedings for felony charges in the past, per the PSR. Defense counsel further proffered that he believed Pacheco to have been unaware of certain traffic-related court dates due to COVID-19 mailing issues, in part resulting in the missed hearings.
Another aggravating factor in Pacheco's history as reflected in the PSR is his recent arrest for driving under the influence of alcohol or a controlled substance in Pennsylvania. This recent travel was unexplained at the hearing, particularly given Pacheco's state bond status at the time for 2018 drug offenses. [PSR at 4-5]. Together with the testimony from Bureau of Alcohol, Tobacco, and Firearms Agent Lizzy Brewer (“Agent Brewer”) at the detention hearing, the record indicates that Pacheco may engage in criminal offense-related travel between Kentucky and New York at unknown intervals and for unknown durations. The testimony further suggested that Pacheco may have an (also unknown) array of criminal associates in New York, his original state of residence.
Agent Brewer testified that Pacheco is believed to have transported multiple firearms to New York that, ultimately, were directly involved in a shooting homicide in that state. She described footage of Pacheco from inside a local pawn shop engaged in a conversation (on his cell phone) discussing purchasing firearms in Kentucky, where they are more readily available, and bringing them to New York. Agent Brewer further indicated that Pacheco and his activities, as well as the related homicide, are suspected to be tied to gang activity. Considering Pacheco's New York criminal connections and his interstate travel in combination, there is some risk that he may be both incentivized (or pressured by gang associates) to avoid federal prosecution and equipped with the resources needed to evade detection and criminal responsibility.
Lastly, Defendant's current living situation presents some concern of instability-or, at least, inadequate monitoring or in-home supervision during any release term. Per the PSR, Pacheco would propose to continue living with his girlfriend of a decade, Cristina Colon (“Colon”), with whom he shares three children. The pair is originally from Bronx, New York but has lived in Frankfort for five years (and at the noted current residence for just over one year). [PSR at 1-2]. However, Colon is the subject of a related federal criminal case in this District, stemming from the same offense conduct here alleged. Colon pleaded guilty to two counts of making false statements in the acquisition of firearms in violation of 18 U.S.C. § 922(a)(6) and, per the docket, is likely to be sentenced in early 2022. United States v. Cristina Colon, No. 3:21-cr-00019-GFVT-MAS, at E.C.F. No. 9 (Sept. 29, 2021).
Per her plea agreement, see E.C.F. No. 9, and consistent with Agent Brewer's testimony at Pacheco's detention hearing, Colon admitted that she was engaging in straw purchases to supply Pacheco with firearms (as Pacheco was prohibited from purchasing or possessing them himself due to prior felony convictions). The record confirms that surveillance footage captures several of the incriminating interactions between Colon and Pacheco at the pawn shops. Though the parties did not address it at the hearing, these circumstances surely risk some volatility at the shared residence. Colon is currently on release pending sentencing. It is unclear how this would impact Pacheco's reliability and ability to travel to Court as needed. Moreover, with Colon's overlapping convictions and the recent criminal scheme between the two, she would be unavailable as a custodian or for any meaningful supervision purposes if Pacheco were released. Finally, Pacheco does not have consistent prior or current employment, though he has been caring for the couple's children since February of 2021 and thus has not been able to work outside of the home. [PSR at 2]. All of these facts indicate some risk of nonappearance, and the second and third BRA factors thus weigh slightly in favor of detention based on flight.
On balance, though Pacheco presents several, varied nonappearance indicators as thoroughly described above, each is...
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