US v. Ibarra, Crim. No. H-91-97.
| Decision Date | 16 July 1991 |
| Docket Number | Crim. No. H-91-97. |
| Citation | 770 F. Supp. 337 |
| Parties | UNITED STATES of America v. Juan IBARRA, John Joe Guerrero, and Robert Franklin Chambers. |
| Court | U.S. District Court — Southern District of Texas |
Bertram A. Isaacs, U.S. Atty's. Office, Narcotics Div., Houston, Tex., for U.S.
Michael DeGuerin, Houston, Tex., for Juan Ibarra.
Lewis Dickson, Houston, Tex., for Robert Franklin Chambers.
Robert Scardino, Houston, Tex., for John Joe Guerrero.
ORDER OF CONTINUED PRETRIAL DETENTION
Before the Court are Defendant Ibarra's Motion to Amend the Detention Order, (Instr. # 7), Defendant Guerrero's Motion for Bond Reconsideration, (Instr. # 10), and Defendant Chambers' Motion to Revoke the Magistrate's Detention Order and for Release Upon the Combination of Reasonable Conditions, (Instr. # 5). The Court has considered these Motions jointly, for purposes of this Order, but individually as respects the merits of each, and for the reasons hereinbelow set out, each of said Motions is DENIED.
Pursuant to the terms of 18 U.S.C. § 3142, a preliminary and detention hearing was held before the Hon. Calvin Botley, United States Magistrate-Judge, on May 28, 1991, in Houston, Texas. After a hearing lasting almost six hours, Magistrate-Judge Botley determined that the Defendants had successfully rebutted the presumption that they constituted a risk of flight, but found that they had failed to rebut the statutory presumption that they constituted a danger to the community, pursuant to 18 U.S.C. §3142(e) and (f).1 On that basis, Magistrate-Judge Botley determined that no condition or combination of pre-trial release conditions would ameliorate such danger to the community, and denied bail, in his Order of Detention Pending Trial, which was entered on May 30, 1991.2
Subsequent to the entry of such Order, these Defendants have individually and collectively moved for reconsideration of the Magistrate-Judge's Order of Detention on a variety of factual and legal bases, and have requested this Court to conduct such review de novo, pursuant to 18 U.S.C. § 3145(b). Therefore, notwithstanding any prior findings by the Magistrate-Judge, as this Court herein acts de novo, it is entitled to make an independent determination as to proper pre-trial detention or proper conditions for release, if any. U.S. v. Fortna, 769 F.2d 243, 249 (5th Cir.1985).
18 U.S.C. § 3141(a) provides for the authority of this Court to consider bond issues. Under 18 U.S.C. § 3142(a), the Court must establish terms of any pre-trial release, and under 18 U.S.C. § 3142(c)(3), this Court may amend release terms, if any, as from time to time required. Similarly, if pursuant to 18 U.S.C. § 3142(a)(4), the Court determines that detention, rather than pretrial release is appropriate, it is mandated to adhere to the provisions of 18 U.S.C. § 3142(e) and (f).
The standard required in the Fifth Circuit, regarding consideration of pre-trial release, is that conditions must be set that "reasonably assure appearance, not `guarantee' appearance, and that detention can be ordered on this ground only if `no condition or combination of conditions reasonably assure the appearance.'" U.S. v. Fortna, 769 F.2d 243, 250 (5th Cir.1985), citing U.S. v. Orta, 760 F.2d 887, 890-92 (8th Cir.1985). This is of course consistent with the presumption of innocence, in each Defendant's behalf, and with Constitutional guarantees against the establishment of excessive or unreasonable bail. U.S. Const. amend. VIII. On the other hand, the Court must juxtapose its serious and legitimate concerns in such regard with current statutory enactments.
The Indictment in this cause, (Instr. # 1), asserts three counts. Count One alleges violations of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A) and 846. Count Two alleges violations of 18 U.S.C. § 1956(a)(1)(A)(i) and § 2. Count Three alleges violations of 18 U.S.C. § 1956(a)(1)(A)(i) and § 371. 18 U.S.C. § 3142(e) and (f) establish a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the Defendant as required and the safety of any other person in the community, where "an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ...". 18 U.S.C. § 3142(e), 18 U.S.C. § 3142(f)(1)(C). Consequently, while such presumption does not apply, as regards Count Two or Count Three, pertaining to any of the three Defendants, such rebuttable presumption does exist as a matter of law, as regards Count One, pertaining to each of said Defendants.
Notwithstanding such distinction, and as regards each count, pertaining to each Defendant, this Court must consider four factors in determining conditions of release, if any, or the justification for pre-trial detention: (1) the nature and circumstances of the offenses charged, especially if narcotics are involved; (2) the weight of the evidence against each Defendant; (3) the history and characteristics of each Defendant, in a number of specified particulars; and, (4) the nature and seriousness of the danger to any person or to the community, regarding the contemplated pre-trial release of any Defendant. 18 U.S.C. § 3142(g).
The burden of persuasion always remains with the Government in a criminal case, and as noted, this Court seeks to scrupulously observe the presumption of innocence, and Constitutional guarantees of reasonable bail; but, by virtue of such statutory scheme, these Defendants must, as regards Count One, rebut the aforestated presumption with regard to both risk of flight, and risk of danger to any person or to the community. As regards Counts Two and Three, the burden of proof pertaining to each "risk" diverges. As no rebuttable presumption pertains to these counts, in this Court's view, the burden of persuasion remains with the Government to demonstrate by "clear and convincing evidence" that any of these Defendants constitutes a risk to any person or to the community, if released pending trial. 18 U.S.C. § 3142(f). However, the Government must prove risk of flight merely by a preponderance of the evidence, establishing that "it is more likely than not that no condition or combination of conditions will reasonably assure the accused's appearance." U.S. v. Fortna, 769 F.2d 243, 250 (5th Cir.1985), citing U.S. v. Orta, 760 F.2d 887, 891 (8th Cir.1985).
With the standard of proof thus established, and the burdens properly placed upon the respective parties as regards the pending motions, the Court now turns to a discussion and brief analysis of applicable portions of the record under consideration. In this regard, the Court expressly notes that it has considered, for purposes of this Order, the complete 203 page transcript of the entire proceedings conducted before Magistrate-Judge Botley, during the preliminary and detention hearing, conducted on May 28, 1991, in Houston, Texas. The Court has also considered the entire 50 page transcript of a motion hearing also held before the Magistrate-Judge, on June 3, 1991, in Houston, Texas, although only limited portions of such proceeding address the issue of pre-trial detention. The Court has further considered the stated motions of each Defendant seeking re-consideration of the Magistrate-Judge's Detention Order, the existing Indictment, all affidavits on file in the cause, and Pre-Trial Services' reports, as regards each Defendant. In addition, the Court has considered all witness testimony and the evidence summaries and arguments of counsel offered at the hearing conducted by this Court as regards the pending motions, on July 11, 1991, in Galveston, Texas, (although the contents of such were largely redundant of the stated materials), as well as all documentary evidence submitted to the Court on such date, and admitted into the record of that proceeding.
On the basis of that entire record, de novo, the Court makes the following factual FINDINGS:
(1) While this Court expressly defers any ruling, in this particular regard, pending the appropriate filing of motions, thus encouraging briefing and arguments from all concerned parties, in due course, this Court acknowledges defense counsels' orally stated concerns that portions of the evidence to be admitted in any trial of this case may be subject to suppression. Nevertheless, and in the present absence of any Motions to Suppress, this Court must assume the admissibility of all evidence proffered to date, and considers the four specified factors mandated by 18 U.S.C. § 3142(g) on that basis.
(2) Notwithstanding the theoretical evidence concerns stated in Finding No. 1, the Court further finds that probable cause existed for Magistrate-Judge Botley to bind these Defendants over for trial, and that probable cause was further sufficiently found to exist by the Grand Jury, to indict Defendants on each of the stated three counts. Conviction as regards Counts One and Two would likely result in substantial periods of incarceration, and for relevant purposes, specifically as regards Count One, would result in a likely term of imprisonment well in excess of ten years.
(3) The evidence as proffered and the total record considered by the Court, for instant purposes, allegedly indicates that these Defendants had in their possession or control documents indicating an extremely substantial cocaine business, involving almost one thousand kilograms of cocaine, and literally millions of dollars. The records seized involved a criminal transaction transpiring over at least five months, from early January, 1991, through May 21, 1991, and the arresting authorities seized weapons, almost one million dollars in cash, a money counting machine, rubber bands and a number of items indicating the substantial handling of funds, and numerous tally sheets and related papers, from several sources, constituting allegedly sophisticated drug...
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...1447 966 F.2d 1447 U.S. v. Ibarra * NO. 91-6001 United States Court of Appeals, Fifth Circuit. June 15, 1992 Appeal From: S.D.Tex., 770 F.Supp. 337 * Fed.R.App.P. 34(a); 5th Cir.R. 34.2. ...