SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court on the United States' Motion for Revocation of the Magistrate Judge's Order granting Conditions of Release (Doc. #17) filed on May 27, 2014. On June 2, 2014, the Court heard argument on the Government's Motion. Michael Bagge-Hernandez, Assistant United States Attorney, appeared for the Government. Russell Rosenthal, Assistant Federal Public Defender, appeared on behalf of the Defendant.
The Defendant has been living in the United States since 1993. Immediately upon entry into the United States the Defendant sought asylum based upon the political situation in his country of origin. The Defendant's request remained pending until it was denied in 2000. Defendant is married and has lived with his wife for approximately twenty (20) years in the Homestead, Florida, geographical area. Together they have four (4) children, all of whom are U.S. citizens.
Defendant previously owned a business during the time he possessed a work visa; however, the work visa was revoked in 2000 after his request for asylum was denied. Since that time, Defendant has not been legally employed. Although the Defendant has no felony criminal history, the Defendant has a prior criminal history consisting of driving while under the influence and driving while license suspended or revoked.
Defendant initially represented himself in the immigration proceedings, and his request for asylum was eventually denied in 2000. After the denial of asylum, the Defendant was directed to leave the United States or be removed; however, he remained in the United States living in Homestead, Florida. The Defendant again attempted to solve the immigration matter in 2007 with retained counsel but was eventually deported.
On March 22, 2010, the Defendant was stopped while driving with an expired license in Collier County, Florida. On April 10, 2010, the Defendant was scheduled to appear in Court on a traffic citation; however, he failed to appear and a bench warrant was issued. The warrant was served on March 18, 2014, and the Defendant was adjudicated guilty on May 1, 2014, and sentenced to serve ninety (90) days.
Immigration officials learned of his illegal status while incarcerated in the Collier County (Naples) Jail Center on the bench warrant. As a result, an ICE detainer was issued and ICE ordered the removal and deportation of the Defendant. The Defendant was subsequently indicted on April 17, 2014, on charges of Illegal Reentry into the United States. The Defendant appeared for an Initial Appearance and Arraignment on May 5, 2014. A Detention hearing was scheduled before the Magistrate Judge on May 20, 2014. Upon consideration of the arguments of Counsel and the pretrial services report, the Magistrate Judge determined the Defendant qualified for conditions of release and ordered the release of the Defendant on a $10,000 unsecured bond, if Pretrial Services was able to confirm information relating to the family. The Order of Release (Doc. #16) was then stayed for seven (7) days to allow the Government to file an appeal to the District Court. (Doc. #15). The Government timely filed the instant motion requesting a revocation of the Magistrate's Order and a de novo review of the issues relating to detention.
The Government moves the Court to reverse the decision of the Magistrate Judge releasing the Defendant on a $10,000.00 bond. At the hearing, the Government argued the Defendant should be detained pending further proceedings because he is a risk of flight and a danger to the community as outlined in the Bail Reform Act, 18 U.S.C. § 3142. Defense Counsel argued that the Magistrate Judge did not err in finding that conditions of release are appropriate in this case.
When requested, the district court must promptly undertake an evaluation of the propriety of a magistrate judge's pre-trial detention order.
In this particular instance, the Court did not simply rely on the record before the Magistrate Judge, but instead conducted a de novo review of the matter by reviewing the entire docket, the papers filed by the parties, the transcript of the hearing held before Magistrate Judge Frazier on May 20, 2014, and received evidence from both parties at an evidentiary hearing held at 9:30 a.m. on June 2, 2014. See, e.g.,
The policy underlying the Bail Reform Act "is to permit release under the least restrictive condition compatible with assuring the future appearance of the defendant."
Pursuant to 18 U.S.C. § 3142(g), there are several factors the Court shall consider in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and secure the safety of the community. Those factors to be considered are:
The Court will review the factors to determine the Defendant's risk of flight under the preponderance of the evidence standard and how they impact the Government's Motion for revocation of the Magistrate Judge's Order releasing the Defendant.
As to the nature and circumstances of the offense charged, the Defendant was indicted on April 17, 2014 on charges of Illegal Reentry into the United States. The offense is not a crime of violence, a violation of 21 U.S.C. § 951, a Federal crime of terrorism, nor does it involve a minor victim or a controlled substance, firearm, explosive, or destructive device.
The Government argues that the evidence of the underlying charge against the Defendant is great. Clearly, based upon the evidence and the investigation of the Defendant's status in this Country and his history of seeking asylum, coupled with the ICE detainer, the Court agrees that the evidence indicates that the Defendant's risk of flight in this case is great.
Defense Counsel argues that the Defendant is not a flight risk based on the fact that Defendant has strong family ties. The Government disagrees, arguing that his family is located in the Southern District of Florida; specifically, his wife and four (4) children are located in Homestead and his parents are located in Miami Dade County. While the Defendant does have family ties to the Southern District of Florida, and family ties is one indicia that courts look to in evaluating the flight risk of a defendant, his family ties are not in the relevant community. In the federal system, courts look to the ties of a defendant to the judicial district in which the criminal charges have been brought.
The Defendant argues that he has raised his family and worked in the area for approximately twenty (20) years, and has consistently pursued legal status since his first arrival. The Defendant argues that he faces minimal incarceration and would not be willing to abandon potential legal status in the United States nor his strong ties to the area to avoid a minimal sentence. Based upon his particular set of circumstances, the Defendant argues the Court should affirm the decision of the Magistrate Judge and impose conditions of release. However, the Defendant does not own a home nor have any property in the relevant community. Further, he is not employed and is not employable based upon his illegal immigration status. Therefore, the Court finds he does not have any financial ties to this community.
As to his character, although the Defendant asserts no current problems with alcohol, he does admit to having problems with alcohol in the past. His prior history of DUI's is evidence of that fact.
While none of the crimes in the Defendant's history are considered violent, he does have a criminal history and has previously failed to appear for a court proceeding resulting in the issuance of a bench warrant. The Defendant remained undetected as the bench warrant was not served on him for approximately four years. The failure to appear is a strong indication to the Court that the Defendant presents a risk of flight should he be released.
Another factor that the Court considered is that the Defendant was serving a period of 90 days incarceration for his failure to appear on a Driving with an Expired Driver's License charge when this charge was lodged against him.
Additionally, there is an ICE detainer that has been lodged against the Defendant. In his decision releasing the Defendant, the Magistrate Judge indicated there was a presumption in favor of detention based upon the existence of the ICE detainer. However, this Court does not agree with the Magistrate Judge that there is a presumption in favor of detention as that is not stated in the law.
Courts have found that an ICE detainer is a factor in considering the issue of detention.
In summary, because of the weight of the evidence against the Defendant with his history and characteristics, the Court determines the risk of flight is great.
The Court has considered the written and oral arguments of Counsel, the Bond and Conditions of Release, the Pretrial Services Report, and the Magistrate Judge's Order. For the reasons stated on the record and those enumerated above, the Court finds by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the Defendant's presence at trial in accordance with 18 U.S.C. § 3142(f). The Court finds the defendant should be detained pending further proceedings.
Accordingly, it is now
