The opinion of the court was delivered by: Hayes, Judge
The matter before the court is the Motion to revoke Magistrate Judge Porter's pre-trial release order and to detain defendant pending trial filed by the Plaintiff United States of America. (Doc. # 5).
On June 23, 2008, Defendant Esmeralda Gallegos was arrested at the San Ysidro Port of Entry after an inspection of her vehicle revealed 20.85 kilograms (45.97 pounds) of methamphetamine concealed in a non-factory compartment. The Statement of Facts in support of the Complaint states that the Defendant was the driver and sole occupant of the vehicle and that the Defendant told the Customs and Border Protection Officer conducting pre-primary roving operations that she was the registered owner of the vehicle and purchased the vehicle approximately six months ago.
On June 24, 2008, Defendant made her initial appearance before the United States Magistrate Judge in accordance with Rule 5 of the Federal Rules of Criminal Procedure. The Government moved for detention on the grounds that the Defendant was a flight risk. The Government relied upon the large quantity of drugs, the seriousness of the charges, and Defendant's past history of failures to appear. In the alternative, the Government requested the Court set bail at one million dollars secured by real property.
Defendant asserted that her detention was not required and that a one hundred thousand dollar bond secured by real property would be adequate to assure her appearance based upon her ties to the community and her lack of criminal history.
The Magistrate Judge denied the motion to detain by the Government and ordered release upon conditions including the Defendant's participation in GPS monitoring program and a personal appearance bond in the amount of one hundred thousand dollars secured by real property. The Magistrate Judge stayed the order on bond for 48 hours so the Government may pursue an appeal.
The Government moves this court pursuant to 18 U.S.C. Section 3145(a)(1) to revoke the pre-trial release order issued by the Magistrate Judge and to detain the Defendant or, in the alternative, to amend the release order to set bond at one million dollars. The Government contends that the Defendant has not rebutted the statutory presumption in Section 3142(e), and that the Defendant should be detained on the grounds that she is a flight risk. The Government relies upon the lengthy term of imprisonment that the Defendant is facing and the gravity of the crime she is charged with committing. The Government contends that the Defendant has family ties in Mexico and has failed to appear on misdemeanor convictions in the past. The Government further asserts that the Defendant has been arrested on two prior occasions in 1997 and in 2005 for smuggling illegal aliens at the port of entry. The Government asserts that the Defendant has a history of violating court orders and the laws of the United States.
Defendant asserts that she has no incentive to leave the United States. Defendant asserts that she is a United States citizen, that she has lived in the United States her entire life, and that she has four children who are United States citizens. Defendant asserts that she has rebutted the statutory presumption in 18 U.S.C. § 3124(e) and that the combinations of conditions set by the order of the Magistrate Judge are adequate to assure her appearance.
18 U.S.C. Section 3142(c) mandates release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required. Only in rare circumstances should release be denied, and doubts regarding the propriety of release should be resolved in the defendant's favor. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).
The Government bears the burden of showing a flight risk by a preponderance of the evidence and a danger to the community by clear and convincing evidence. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). 18 U.S.C. § 3124(g) specifies factors that the court should consider when determining whether there are conditions of release that will reasonably assure the defendant's appearance and the community safety: (1) the nature and seriousness of the offense charged; (2) the weight of the evidence against the defendant; (3) the defendant's character, physical and mental condition, family and community ties, past conduct, history relating to drug and alcohol abuse, and criminal history; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. Id. Of these factors, the weight of the evidence is the least important, and the statute neither requires nor permits a pretrial determination of guilt. United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986).
The Court must first determine whether to release the defendant on her own recognizance or on an unsecured appearance bond. If not so released, the Court must consider release based upon the conditions in Section 3142(c). If the defendant is found to be a flight risk or a danger to the community, the defendant may be released subject to conditions. Section 3142(c) specifically prohibits the court from "impos[ing] a financial condition that results in the pretrial detention of the [defendant]. Section 3142(c)(2). In United States v. Fiedler, 419 F.3d 1026, 1028 (9th Cir. 2005), the Court of Appeals explained that "[t]his provision was intended to prevent the practice of 'de facto preventative detention,' where a judge could in effect issue a detention order without a proper finding of risk of flight or danger to the community by granting bail but setting an exorbitant financial condition that the defendant could not meet." However, the Court of Appeals explained that "the de facto detention of a defendant under these circumstances does not violate § 3142(c)(2) if the record shows that the detention is not based solely on the defendant's inability to meet the financial condition, but rather on the district court's determination that the amount of the bond is necessary to reasonably assure the defendant's attendance at trial or the safety of the community. This is ...