The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion for revocation of pretrial release order filed by the Plaintiff United States of America (Doc. # 190).
On July 29, 2010, the federal grand jury returned a one-count indictment charging Defendant Miguel Soria and others with conspiring to conduct enterprise affairs through a pattern of racketeering activity, in violation of 18 U.S.C. 1962(d). The indictment charges that the Defendant Soria was a crew member in the Fernando Sanchez Organization (FSO), a drug trafficking organization with the objective and purpose of importation and distribution of narcotics in the United States. The indictment alleges that the FSO conducts extensive enforcement operations in the United States and Mexico in support of its drug business, including acts of assault, kidnaping and murder. The indictment charges that Defendant Soria personally committed at least four separate racketeering acts involving conspiracy to commit murder, conspiracy to commit armed robbery, distribution of methamphetamine, and distribution of marijuana.
On July 26, 2010, Defendant made his first appearance before a United States Magistrate Judge. Counsel was appoint and Defendant entered a plea of not guilty. The attorney for the United States made an motion to detain the Defendant pending trial.
On August 4, 2010, the Magistrate Judge held a detention hearing. The Government sought detention on the grounds that the Defendant was a flight risk and a danger to the community. Defendant asserted that there are conditions or combinations of conditions which could be set by the Court to assure his presence at future court appearances and the safety of the community.
The Magistrate Judge found that the rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community pursuant to 18 U.S.C. § 3142(e)(3)(A) applied but concluded that the Defendant had put forth enough evidence to rebut the presumption. The Magistrate Judge stated:
I do note that the weight of the evidence is the least important factor. These allegations are extremely serious. They do show a danger, but I do take note of the fact that Mr. Soria's role in the most violent of the offenses, the attempted robbery on the 14th of December, was that of a -- he didn't actually possess the weapon, and he was, I believe, a look-out... which is certainly a little bit less mitigated than others. And also, you were driver in the alleged murder plot.
Both of these put you in a very serious situation, whether... you're hanging around with the wrong crowd or not, you put yourself into a situation of extreme risk to you and your family, in terms of prison, and you're facing very serious charges....
Because of the role you played and the evidence in terms of who was going to be the actual shooter, I'm going to -- I'm not going to detain you on the basis of danger to the community, because I think your ties to the community and your equities, outweigh the danger that you pose, either because you intentionally want to hurt people in this case, or whether you were hanging around with the wrong crowd. (Doc. # 217 at 26). The Magistrate Judge found that the Defendant is eighteen years old, has significant ties to the community, and is a United States citizen. The Magistrate Judge found that the Defendant had one prior drug conviction but had complied with the conditions of supervised release. The Magistrate Judge found that a combination of conditions would reasonable assure the Defendant's appearance and the safety of the community, including a personal appearance bond in the amount of $100,000 secured by real property and active GPS monitoring.
On August 8, 2010, the Government filed a motion for review of the order granting pretrial release. The Government asserts that the Defendant should be detained pending trial because he is a danger to the community and a risk of flight. In addition to the presumption in favor of detention, the Government contends that the nature and circumstances of this racketeering conspiracy, including acts of murder, kidnaping, robbery and drug trafficking; and this Defendant's personal participation in four separate racketeering acts strongly favors detention.
Defendant asserts that the evidence that he was a knowing participant in all but one of the four alleged acts of racketeering is weak. Defendant asserts that he dissociated himself with negative influences after his arrest in January of 2010 for possession of marijuana with intent to distribute. Defendant further asserts that the conditions imposed by the Magistrate Judge are onerous and should be reduced to a $80,000 personal appearance bond secured by the signatures of two financially responsible adults.
On August 24, 2010, this Court held a hearing on the motion to revoke pretrial release order. At the hearing, the Government's proffered evidence that the Defendant was directly involved in two drug trafficking offenses, and conspiracy to commit robbery, and conspiracy to commit murder.*fn1
On December 14, 2009, at approximately 8:20 p.m., Defendant Raul Moreno placed a recorded call to a confidential informant. During the call, Moreno asked the confidential informant to report as soon as possible to "la officina," which was known to be located at 244 Palomar, Apartment #28, Chula Vista, California. Moreno explained that they were looking for "magazines for the shorts," which referred to ammunition magazines for the handguns. On the way to the meeting spot, the confidential informant was provided with a concealed recording device. Surveillance agents followed the confidential informant. Agents observed Defendant Soria, Defendant Moreno and Defendant Armando Castillo get into the confidential informant's vehicle. The recording device revealed that while driving to a shopping mall named Plaza Las Americas, Moreno stated that they were going to rob two women who worked at the mall as the women walked to a nearby bank to deposit their daily cash proceeds. Moreno stated that the women routinely made the walk between 10:00 p.m. and 10:30 p.m. According to the confidential informant, Moreno was ...