United States v. Vencomo-Reyes
| Decision Date | 28 November 2011 |
| Docket Number | No. CR 11-2563 JB,CR 11-2563 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JULIO VENCOMO-REYES, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Motion and Memorandum in Support of Motion for Conditions of Release, filed October 5, 2011 (Doc. 20)("Motion"). The Court held a hearing on November 7, 2011.1 The primary issue is whether the Court should vacate the Detention Order Pending Trial that the Honorable W. Daniel Schneider, United States Magistrate Judge, entered on August 24, 2011 (Doc. 12)("Detention Order") and release Defendant Richard Julio Vencomo-Reyes pre-trial. The Court finds that Plaintiff United States of America has met its burden of proving that Vencomo-Reyes is a risk of nonappearance by a preponderance of the evidence, and that there are no conditions or combinations of conditions that could reasonably assure his appearance. Accordingly, the Court will detain Vencomo-Reyes pending trial.
Vencomo-Reyes was born in Mexico. See Motion at 1. When he was nine years old, individuals brought Vencomo-Reyes, who was likely an orphan, to live in Taos, New Mexico.See Motion at 1. Vencomo-Reyes worked for those individuals, never attaining citizenship or attending school. See Motion at 1. The family kept Vencomo-Reyes as a "house-boy," until, after approximately fifteen years, they moved away from Taos and left Vencomo-Reyes behind. Motion at 1. Vencomo-Reyes stayed in Taos and sixteen years ago met his wife, Shirley Reyes. See Motion at 1.
Vencomo-Reyes has lived most of his life in New Mexico and has no known relatives left in Mexico. See Motion at 2. Vencomo-Reyes has two children, who were born in the United States. See Motion at 2. Since arriving in the United States at age 9, Vencomo-Reyes has not left. See Motion at 2.
On August 10, 2011, a police officer witnessed a maroon pick-up truck fail to come to a complete stop at the intersection of Weimer Road and Maestas Road in Taos. See New Mexico v. Reyes, No. M-53-FR-201100149, Statement of Probable Cause, dated August 11, 2011 (Defendant's Ex. 1)("Probable Cause"); Transcript of Hearing at 7:4-10 (November 7, 2011)(Juarez)("Tr.").2 The truck then proceeded south on Maestas traveling at 40 miles per hour ("mph") in a 25 mph zone. See Probable Cause at 1. The officer then initiated a traffic stop. Probable Cause at 1; Tr. at 7:10 (Juarez). The officer asked for a driver's license, insurance, and registration. See Probable Cause at 1. Vencomo-Reyes provided only proof of registration and insurance. See Probable Cause at 1. The officer then asked for his name, date of birth, and social security number ("SSN"). Probable Cause at 1. Vencomo-Reyes gave his date of birth and a social security card. See Probable Cause at 1. Suspecting that the social security card was a fake, the officer had dispatch run the SSN and was informed that there was no return on the SSN. See Probable Cause at 1. As Vencomo-Reyesexited the vehicle, the officer noticed a large machete in the vehicle and advised Vencomo-Reyes that he would be detained for questioning. See Probable Cause at 1.
Vencomo-Reyes' cellular telephone began ringing and the officer ordered Vencomo-Reyes not to reach for it. See Probable Cause at 1; Tr. at 9:7-8 (Juarez). When Vencomo-Reyes continued reaching for his cellular telephone, the officer took Vencomo-Reyes to the ground. See Probable Cause at 1; Tr. at 9:8-12 (Juarez). Vencome-Reyes' cellular telephone, wallet, and fake social security card fell to the ground. See Probable Cause at 1. Shortly thereafter, Vencomo-Reyes' wife, S. Reyes, arrived and, upon being informed that the officer was arresting Vencomo-Reyes, she picked up the fake social security card, despite orders from the officer not to do so. See Probable Cause at 1. She then proceeded to tear the card in pieces, sticking some pieces in her shirt and eating others. See Probable Cause at 1-2. While this was happening, Vencomo-Reyes head-butted the officer in the nose, which caused his nose to bleed and his eyes to water. See Probable Cause at 2. Finally, back-up arrived, and both Vencomo-Reyes and Shirley Reyes were detained. See Probable Cause at 2. According to the United States Pretrial Services Report ("PTSR"), on August 10, 2011, Vencomo-Reyes was charged with several state offenses: (i) "tampering with public records"; (ii) "aggravated battery upon a police officer"; (iii) "resisting/evading/obstructing officer"; (iv) "speeding"; (v) "driver's must be licensed"; and (vi) "failure to stop at intersection."3 The statecourt released Vencomo-Reyes on an unsecured bond on August 18, 2011. See Motion at 2. Agents with United States Immigration and Custom Enforcement ("ICE") took Vencomo-Reyes into custody on August 19, 2011, and he remained in their custody until federal charges were filed against him on August 23, 2011. See Motion at 4.
On August 23, 2011, a Criminal Complaint was filed against Vencomo-Reyes alleging a violation of 18 U.S.C. § 922(g)(5), that being an Alien in Possession of a Firearm and Ammunition. See Doc. 1. PTS recommended that Vencomo-Reyes be detained pending trial, because he is a flight risk and his criminal history indicates that he is a danger to the community. Besides the state charges related to this case, PTS found three prior offenses which took place in the 1980s: (i) trespassing, 1981; (ii) retail theft, 1982; and (iii) driving while under the influence of intoxicating liquors, 1987. Vencomo-Reyes made his initial appearance before Judge Schneider on August 23, 2011, and the Plaintiff United States of America moved for Vencomo-Reyes' detention pending trial. See Criminal Clerk's Minutes at 1 (August 23, 2011), filed August 23, 2011 (Doc. 2). Judge Schneider ordered Vencomo-Reyes detained and set a detention hearing for August 24, 2011. See Criminal Clerk's Minutes at 1.
On August 24, 2011, Vencomo-Reyes requested that Judge Schneider release him on his own recognizance. See Response ¶ 3, at 1. Judge Schneider denied Vencomo-Reyes Motion, and found that "[t]here is a serious risk that the defendant will endanger the safety of another person or the community." Detention Order at 2. Judge Schneider stated, as reasons for his decision, that "the defendant resisted arrest and was in possession of a firearm and at this time there are no terms or conditions for release." Detention Order at 2. Vencomo-Reyes then filed his Motion for Reconsideration and Memorandum in Support of Motion for Conditions of Release on September6, 2011. See Doc. 13 ("Motion to Reconsider").
On September 27, 2011, a federal grand jury returned an indictment charging Vencomo-Reyes with a single-count violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2), that being an Alien in Possession of a Firearm and Ammunition. See Redacted Indictment, filed September 27, 2011 (Doc. 16)("Indictment"). The United States filed its response to the Motion to Reconsider on September 29, 2011. Judge Schneider entered his Order Denying the Motion on September 29, 2011. See Doc. 19 ("Order"). Upon consideration of the Motion to Reconsider and the Response, Judge Schneider found that "the presumption applies and has not been overcome," and that "there is insufficient evidence to justify the change in custodial status," because there is currently an ICE detainer against Vencomo-Reyes. See Order at 1. On October 5, 2011, Vencomo-Reyes filed this Motion.
On November 7, 2011, the Court held a hearing. Vencomo-Reyes provided the Court and the United States with a copy of the Statement of Probable Cause, which establishes the circumstances surrounding his arrest. See Tr. at 3:1-5 (Juarez). Vencomo-Reyes gave the Court some background information about how he arrived in the United States as an orphaned nine-year old and became an "indentured slave" to the family who brought him here. Tr. at 3:8-10 (Juarez). Vencomo-Reyes emphasized that he has very little criminal history. See Tr. at 3:13-17 (Juarez). Furthermore, Vencomo-Reyes asserted that no one has stated that he is a flight risk. See Tr. at 3:17-19 (Juarez).4 Judge Schneider, according to Vencomo-Reyes, decided to detain Vencomo-Reyes because he was arrested for resisting and had a firearm in his car. See Tr. at 3:19-22 (Juarez). Vencomo-Reyes argued that the United States did not proffer any evidence that he used the gun toresist or that he used the gun in any other manner. See Tr. at 3:23-25 (Juarez). Pointing to the Statement of Probable Cause, Vencomo-Reyes asserted that the officer never mentions guns. See Tr. at 4:2-4 (Juarez). Furthermore, Vencomo-Reyes stated that the state court has yet to hold a preliminary hearing on the state charges and determine whether there is authority to bind him over on those charges. See Tr. at 4:6-10 (Juarez).
Vencomo-Reyes contended that he is not charged with any crime of violence and disputed that he intentionally assaulted the police officer while being arrested. See Tr. at 4:18-25 (Juarez). He asserted that no presumption of detention applies and that the Court should analyze whether to detain him under the 18 U.S.C. § 3142(g) factors alone. See Tr. at 5:9-15 (Juarez). To support his argument that he did not commit a crime of violence, Vencomo-Reyes pointed the Court to United States v. Ingle, 454 F.3d 1082 (10th Cir. 2006). See Tr. at 5:16-6:5 (Juarez). Vencomo-Reyes argued that Judge Schneider looked at his resisting arrest and possession of a firearm together. See Tr. at 6:6-12 (Juarez). Chronologically, Vencomo-Reyes asserted, he was charged with resisting arrest, and it was not until the officers searched his vehicle that they discovered the firearm. See Tr. at 6:12-16 (Juarez). Vencomo-Reyes contended that there was nothing illegal about the firearm, other than that he is an undocumented alien, and that this is a status offense. See Tr. at 7:17-25 (Juarez). Asserting that he...
To continue reading
Request your trial