The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion to Revoke the Magistrate Judge's Order of Detention (#66) filed by Defendant Deric Williams.
On October 31, 2007, the grand jury returned an indictment charging the Defendant Deric Williams and eight other individuals with conspiracy to distribute methamphetamine in violation of Title 21, United States Code, Sections 841(a)(1) and 846.
On November 1, 2007, the United States Magistrate Judge issued an arrest warrant for Defendant Williams.
On November 6, 2007, Defendant Williams and six other Defendants were arrested. On November 7, 2007, Defendant Williams and six other Defendants were brought before a United States Magistrate Judge for an initial appearance. Defendant Williams was arraigned on the one count Indictment and entered a plea of not guilty. The attorney for the United States made an oral motion to detain Defendant Williams. The United States Magistrate Judge set a detention hearing for November 9, 2007.
On November 7, 2007, counsel for Defendant Williams sent by facsimile and mail a letter to counsel for the United States requesting that the United States turn over any wiretap applications and orders prior to the detention hearing.
On November 9, 2007, the United States Magistrate Judge held a detention hearing for Defendant Williams. Defendant Williams requested a continuance of the detention hearing. The United States Magistrate Judge granted the request for a continuance and reset the detention hearing for November 15, 2007.
On November 15, 2007, the United States Magistrate Judge held a detention hearing. The United States moved to detain Defendant Williams pending trial based upon a risk of flight. The United States argued that no conditions can adequately assure the Defendant's presence. The United States asserted that evidence against the Defendant was extremely strong, including intercepted telephone calls, information from cooperators, and surveillance. Counsel for the United States stated that "there were a number of surveillances, including one incidence on February 22nd when agents personally observed Mr. Williams deliver approximately one to two pounds of methamphetamine to Victor Ramos, one of the co-defendants. Post arrest, the Defendant admitted as much and admitted crossing other loads for multiple drug organizations in Mexico, including the AFO and other Sinaloa drug cartels." Doc. # 66-2, Exhibit A at 3. The United States argued that Defendant Williams had an extensive criminal history although dated, and that TECS records showed that Defendant Williams lived and worked primarily in Mexico.
Defendant Williams asserted that there is a condition or combination of conditions which could be set by the Court to insure his presence at future court appearances. Defendant Williams argued that the United States was not entitled to rely upon any wiretap evidence at the detention hearing because no discovery has been provided and that the weight of the evidence is the least important factor. Defendant Williams asserted that he is a U.S. citizen with all of his immediate family including sisters, brothers and two children living in Southern California; that his most recent criminal history is almost ten years old; and that he has no history of drug or alcohol abuse. Defendant Williams argued that a bond in the amount of $100,000.00 secured by real property and personal sureties would be adequate to assure his appearance.
The United States Magistrate Judge concluded:
In light of the drugs and the quantities involved in this case and the seriousness of the offense, the Government has the benefit of a presumption that you pose a risk of flight due to the sentence that you may be facing. The weight of the evidence in this case . . . is relatively strong, although that's the least important factor for me to consider. It's therefore your burden to overcome the presumption by showing other factors that I need to consider would indicate that there would be conditions I could set that would indicate that you're not a flight risk.
I think this is a very close call in this case. Weighing in your favor certainly is the fact that you're a U.S. citizen and that you have family ties here. However, on the other side of the balance of that equation, there seems to be a criminal history, although slightly dated, that also indicated probation violations, that your employment is self-employment that doesn't require that you be here in the United States, that in fact you have that employment in Mexico, that you're currently residing there, and that your closest personal relationship is with someone in Mexico.
On balance, considering those factors against the presumption, I don't think that your counsel has overcome the presumption in this case. Therefore, I am going to grant the ...