United States v. Tarrio
| Decision Date | 27 May 2022 |
| Docket Number | Criminal Action No. 21-175-5 (TJK) |
| Citation | 605 F.Supp.3d 73 |
| Parties | UNITED STATES of America, v. Enrique TARRIO, Defendant. |
| Court | U.S. District Court — District of Columbia |
Conor Mulroe, Assistant U.S. Attorney, DOJ-CRM, Washington, DC, Erik Michael Kenerson, Luke Matthew Jones, James B. Nelson, Jason Bradley Adam McCullough, Assistant U.S. Attorneys, U.S. Attorney's Office for District of Columbia, Washington, DC, Nadia Moore, Assistant U.S. Attorney, U.S. Attorney's Office, Brooklyn, NY, for United States of America.
Nayib Hassan, Law Offices of Nayib Hassan, P.A., Miami Lakes, FL, Sabino Jauregui, Jauregui Law, P.A., Hialeah, FL, for Defendant.
On March 7, 2022, a grand jury returned a Second Superseding Indictment charging Enrique Tarrio with, among other things, conspiring with his five codefendants to obstruct the certification of the Electoral College vote related to the 2020 presidential election. Each of his codefendants was previously charged, and all of them are detained pending trial. Tarrio was arrested on a warrant the day after the indictment was returned, and Magistrate Judge Lauren F. Louis of the Southern District of Florida held a hearing to determine whether Tarrio should be detained too. After considering the factors enumerated in 18 U.S.C. § 3142(g), Judge Louis found by clear and convincing evidence that Tarrio presented a danger to the community and that no condition or combination of conditions will reasonably assure the safety of the community. She therefore ordered him detained. Tarrio now moves for bond, which requires this Court to review Judge Louis's determination de novo. After holding its own hearing, the Court reaches the same conclusion for substantially the same reasons. Thus, his motion will be denied, and the Court orders him detained pending trial.
"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno , 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Under the Bail Reform Act ("BRA"), 18 U.S.C. §§ 3141 – 3156, "Congress limited pretrial detention of persons who are presumed innocent to a subset of defendants charged with crimes that are ‘the most serious’ compared to other federal offenses." United States v. Singleton , 182 F.3d 7, 13 (D.C. Cir. 1999) (quoting Salerno , 481 U.S. at 747, 107 S.Ct. 2095 ). As a result, a detention hearing must be held at the government's request only "in a case that involves" a charged offense falling in one of five enumerated categories, 18 U.S.C. § 3142(f)(1)(A)–(E), or if the defendant poses a serious risk of flight or of trying to obstruct justice or threaten, injure, or intimidate a witness or juror, id. § 3142(f)(2)(A)–(B).
A subset of offenses requiring a detention hearing triggers a rebuttable presumption "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community"—that is, as long as "the judicial officer finds that there is probable cause to believe that the person committed" that subset of offenses. 18 U.S.C. § 3142(e)(3). The subset includes any "offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed." Id. § 3142(e)(3)(C).
The presumption places "a burden of production on the defendant to offer some credible evidence contrary to the statutory presumption." United States v. Taylor , 289 F. Supp. 3d 55, 63 (D.D.C. 2018) (quoting United States v. Alatishe , 768 F.2d 364, 371 (D.C. Cir. 1985) ). And even when the defendant offers evidence to rebut the presumption, it "is not a ‘bursting bubble’ that becomes devoid of all force once a defendant has met his burden of production." Taylor , 289 F. Supp. 3d at 63 (quoting United States v. Jessup , 757 F.2d 378, 382 (1st Cir. 1985) ). Instead, it is "incorporated into the other factors considered by this Court in determining whether to grant a conditional release and is given substantial weight." United States v. Ali , 793 F. Supp. 2d 386, 391 (D.D.C. 2011).
The BRA provides that a judicial officer "shall order" the "detention of the [defendant] before trial," if, after a detention hearing held under 18 U.S.C. § 3142(f), and upon consideration of "the available information concerning" enumerated factors, id. § 3142(g), "the judicial officer finds that 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," id. § 3142(e)(1). "In common parlance, the relevant inquiry is whether the defendant is a ‘flight risk’ or a ‘danger to the community.’ " United States v. Vasquez-Benitez , 919 F.3d 546, 550 (D.C. Cir. 2019). Even if the defendant does not pose a flight risk, danger to the community alone is sufficient reason to order pretrial detention. Salerno , 481 U.S. at 755, 107 S.Ct. 2095. But the BRA "requires that detention be supported by ‘clear and convincing evidence’ when the justification is the safety of the community."
United States v. Simpkins , 826 F.2d 94, 96 (D.C. Cir. 1987).
In assessing whether pretrial detention or release is warranted, the judicial officer must "take into account the available information concerning" four factors: (1) "the nature and circumstances of the offense charged, including whether the offense is a crime of violence"; (2) "the weight of the evidence against the person"; (3) "the history and characteristics of the person, including ... the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings"; and (4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). At the detention hearing, both the government and the defendant may offer evidence or proceed by proffer. United States v. Smith , 79 F.3d 1208, 1210 (D.C. Cir. 1996) (per curiam).
If a defendant is ordered detained under § 3142 by a judicial officer, including "by a magistrate judge," the BRA allows the defendant to "file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." 18 U.S.C. § 3145(b). The statute does not specify the standard of review to be applied by a district court reviewing a magistrate judge's detention order, and "the D.C. Circuit has not yet addressed the issue." United States v. Hunt , 240 F. Supp. 3d 128, 132–33 (D.D.C. 2017). That said, both the BRA and the Federal Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have considered the question, that a district court reviews a magistrate judge's release or detention order de novo. See United States v. Chrestman , 525 F. Supp. 3d 14, 23 (D.D.C. 2021). And courts in this District routinely apply that standard. See id. at 24 ; Hunt , 240 F. Supp. 3d at 132–33.
The government mainly seeks to detain Tarrio under 18 U.S.C. § 3142(f)(1)(A), because he is charged with an offense listed in 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed: in this case, a felony violation of 18 U.S.C. § 1361.1 And, the government argues, that same offense provides a rebuttable presumption of detention because the grand jury found probable cause to believe that Tarrio committed "an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed." 18 U.S.C. § 3142(e)(3)(C). For the below reasons, the Court agrees that a rebuttable presumption arises from the charges against Tarrio and that he has not offered sufficient evidence to rebut it. And after considering all the § 3142(g) factors, the Court finds that the government has shown, by clear and convincing evidence, that "no condition or combination of conditions will reasonably assure" the safety of the community, id. § 3142(e)(1). Thus, the Court will order that Tarrio be detained pending trial.
Tarrio does not contest that a rebuttable presumption of detention arises here, because grand jury found probable cause to believe that he committed "an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed." 18 U.S.C. § 3142(e)(3)(C). One of those offenses charged in the Second Superseding Indictment— 18 U.S.C. § 1361 —is specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B)(i). And in cases such as this one involving alleged damage or attempted damage to property of the United States in excess of $1,000, that offense carries a maximum sentence of ten years in prison. Under Circuit precedent, the return of that indictment "makes conclusive the existence of probable cause to hold the accused for further prosecution." United States v. King , 482 F.2d 768, 776 (D.C. Cir. 1973). Thus, the rebuttable presumption arises.
The first statutory factor requires the Court to consider "the nature and circumstances of the offense charged." 18 U.S.C. § 3142(g)(1). Tarrio is charged with one count of Conspiracy to Obstruct an Official Proceeding, in violation of 18 U.S.C. § 1512(k) ; one count of Obstruction of an Official Proceeding, in violation of 18 U.S.C. § 1512(c)(2) ; one count of Obstruction of Law Enforcement During a Civil Disorder, in violation of 18 U.S.C. § 231(a)(3) ; two counts of Destruction of Government Property, in violation of 18 U.S.C. § 1361 ; and two...
To continue reading
Request your trial