UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
February 23, 2011
UNITED STATES OF AMERICA
ISRAEL SANCHEZ, AKA "ICHA," AKA "BIG HOMIE," DEFENDANT.
The opinion of the court was delivered by: George H. King United States District Judge
CC: Magistrate Judge Woehrle Criminal Intake/PTS/USPO
ORDER DENYING MOTION FOR REVIEW OF MAGISTRATE JUDGE'S BAIL ORDER
This matter is before us on the Government's Application for Review of Magistrate Judge's February 16, 2011 Bail Order. Defendant Israel Sanchez did not file a written response. We heard oral argument on February 17, 2011.*fn1 We have considered fully the record in this case, and argument of counsel. We rule as follows:
I. FACTUAL AND PROCEDURAL HISTORY
Israel Sanchez, the lead defendant in this three-defendant case, is facing charges stemming from his alleged participation in a conspiracy to distribute methamphetamine. His two co-defendants pled guilty in May 2008 and August 2010, and were sentenced to 151 months and 240 months of imprisonment, respectively. Although the Indictment in this case was filed on July 17, 2008, it was sealed as to Defendant until his arrest on February 15, 2011.*fn2
At the detention hearing on February 15, 2011, Magistrate Judge Carla Woehrle ordered Defendant released on an Appearance Bond in the amount of $50,000, fully justified with an affidavit of surety signed by Defendant's sister, with deeding of property. Judge Woehrle also ordered, among other conditions, intensive pre-trial supervision, home confinement with electronic monitoring, and no contacts with co-defendants or any criminal street gang. Judge Woehrle concluded that Defendant has bail resources that, in combination with other conditions, overcame the presumption of flight risk and danger to the community. Judge Woehrle stayed her order for 48 hours to permit any appeal by the Government.
On February 16, 2011, the Government filed the instant Application seeking review of Judge Woehrle's order. The Government argues that Defendant's lead role in the methamphetamine trafficking conspiracy, among other things, makes him a serious risk of flight and a danger to the community; hence he should be detained pending trial.
II. LEGAL STANDARD
Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., a district court reviews a magistrate judge's detention or release order de novo. U.S. v. Koenig, 912 F.2d 1190, 1191 (9th Cir. 1990) (so holding). Our determination here is therefore governed by 18 U.S.C. § 3142. Section 3142(f) requires, among other things, that we determine "whether any condition or combination of conditions . . . will reasonably assure the appearance of such person as required and the safety of any other person and the community." 18 U.S.C. § 3142(f). The parties do not dispute that, in this case, there is "rebuttable presumption" that Defendant is a flight risk and a danger to the community. 18 U.S.C. § 3142(e). However, "[a]lthough the presumption shifts a burden of production to the defendant, the burden of persuasion remains with the government." U.S. v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008).
If a defendant proffers evidence to rebut these presumptions, the court considers four factors in determining whether the pretrial detention standard is met: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including the person's character, physical and mental condition, family and community ties, employment, financial resources, past criminal conduct, and history relating to drug or alcohol abuse; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. § 3142(g). See United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986) (applying factors). "The presumption is not erased when a defendant proffers evidence to rebut it; rather the presumption 'remains in the case as an evidentiary finding militating against release, to be weighed along with other evidence relevant to factors listed in § 3142(g).'" Hir, 517 F.3d at 1086 (citing United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986)).
A. Flight Risk
Although there is a rebuttable presumption of flight risk, the Government nevertheless bears the burden of proving that no condition or combination of conditions will reasonably assure Defendant's appearance as required. The Government contends that Defendant is a flight risk for the following reasons: Defendant is facing a mandatory minimum sentence of 20 years; Defendant has family members in Mexico and lived in Nevada from 1998 to 2004; and Defendant has traveled to Mexico. Given the lengthy punishment Defendant is facing and his ostensible ability to relocate to Mexico due to financial resources that are purportedly available to him, the Government contends that Defendant is a serious flight risk and that the conditions Judge Woehrle imposed are insufficient to assure his presence.
Defendant has presented enough evidence under 18 U.S.C. § 3142(g) to meet the presumption. As disclosed in the Pre-Trial Services Report (PSR), the contents of which the Government does not dispute, Defendant is currently employed,*fn3 has a stable residence, is the sole provider for his ill wife and four grandchildren who live with him, is a United States citizen, does not have a passport, and has immediate family ties in the district.
Moreover, Defendant has been aware of the threat of prosecution for several years. In September 2008, the Government conducted a "take-down" of approximately 25 gang members with whom Defendant is alleged to be associated. The Government did not initially charge Defendant. But, in July 2009, Defendant and his counsel, along with a representative of the Santa Barbara County District Attorney's Office, attended a "reverse proffer" meeting with an Assistant United States Attorney at which Defendant was offered a plea agreement with a disposition including a five-year term of imprisonment. (Defendant declined the offer.) Furthermore, as noted, Defendant's two co-defendants pled guilty and were sentenced to lengthy prison terms. Clearly, Defendant has been aware for some time of the prospect of being prosecuted. Given his co-defendants' lengthy sentences, Defendant has also been aware that he could face severe punishment if convicted. Yet, despite this situation, Defendant has not fled.
The Government contends that, because Defendant is now officially indicted, the risk of going to prison must be much more imminent to him, making flight more attractive. The Government also points to a September 2008 phone call between Defendant and his brother, who was in custody at that time, as evidence of Defendant's consciousness of guilt bearing on his likelihood of flight. During that phone call, Defendant stated that he would be "going back to Las Vegas . . . We should be home by November or December" and "I've got to get out of here, man." (Application 8:11-23.)
Neither of the Government's arguments is persuasive. First, based on all of the facts above, including the arrests and sentences of his co-conspirators and the reverse proffer, the possibility of actually being prosecuted and sentenced to a lengthy prison term has likely been very real to Defendant all along. This view is reinforced by the Government's own interpretation of the phone call, which rests on the notion that Defendant believed he could be targeted by the authorities. Yet, despite stating "I've got to get out of here," Defendant nevertheless did not flee. In fact, the recorded conversation that was excerpted for the court by the Government is ambiguous, at best. The Indictment simply has not changed the situation so much that Defendant, who could have fled at any point in the last two years and several months, is now significantly more likely to flee.
In any event, the Magistrate Judge imposed conditions on Defendant's release designed to mitigate the risk of his flight and to "reasonably assure" his appearance. Specifically, Judge Woehrle required a $50,000 fully justified appearance bond, with deeding of property, and ordered home confinement with electronic monitoring, and other conditions. Home detention and electronic monitoring are likely to reduce the risk of flight because the supervising Pre-Trial Services Officer would be notified if Defendant oversteps the limitations on his movements. While we are of the view that a modification to these conditions is required to reasonably assure against the risk of flight (see discussion below at pp. 9-10), we find and conclude that, notwithstanding the presumption, the Government has not shown by a preponderance of the evidence that there are no conditions or combination of conditions that would reasonably assure the appearance of the Defendant as required.
B. The Safety of the Community
The Government also bears the burden of proving, by clear and convincing evidence, that no conditions or combination of conditions would reasonably assure the safety of the community. 18 U.S.C. § 3142(f)(2)(B) (stating that the Government must support the "safety of the community" factor with clear and convincing evidence). We recognize that there is a rebuttable presumption that Defendant is a danger to the community. Furthermore, Congress has determined that drug trafficking is a danger to the community. See, e.g., Controlled Substances Act, 21 U.S.C. § 801(2) (stating, "The illegal importation, manufacture, [and] distribution . . . of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."); see also Feroz v. I.N.S., 22 F.3d 225 (9th Cir. 1994) (noting that, in immigration context, an applicant convicted of the "serious crime" of drug trafficking is also a "danger to the community"). Thus, Defendant would pose a danger to the community to the extent he continues his alleged methamphetamine trafficking.
The Government contends that due to Defendant's role as the leader of the conspiracy and the supplier of the methamphetamine, he can continue his alleged trafficking activities essentially without leaving his home. For example, Defendant can continue trafficking merely by making phone calls, and can tap into an existing network of couriers, not all of whom have been incapacitated by incarceration. The Government also points to Defendant's previous felony drug conviction, in 1989, and two previous dangerous misdemeanors: for battery in 1988, and for exhibiting a deadly weapon in 1994. Given these facts, the Government contends "there can be no guarantees that defendant will not continue to supply drug dealers with drugs to sell, or direct others to do so on his behalf." (Application 7:22-24.)
While we agree that there can be no guarantees, we also conclude that the Government has relied on an erroneous proposition of law. In life, as with the Bail Reform Act of 1984, there are no absolute guarantees. Our inquiry is not whether the Defendant's behavior can be guaranteed, but rather whether it can be "reasonably assured" that he will not pose a danger to the community -- in this case by engaging in drug trafficking while on pre-trial release.
Although section § 3142(e) creates a presumption that Defendant's release would endanger the community, Defendant has presented evidence to at least meet that presumption. As the Government conceded at the hearing, it has no evidence that Defendant has engaged in any illegal activities, much less drug trafficking, since the last transaction alleged in the Indictment. While the Government, understandably, may not be in a position to specify the contours of its continuing investigation related to this case, it is a reasonable inference that Defendant has not been beyond the Government's interest since September, 2007 -- the last period alleged in the Indictment.
Moreover, we have also considered all factors that the Government argued support its position that Defendant will likely return to drug trafficking and that no conditions can reasonably assure against such activity, including its argument that Defendant has been laying low for this period because he knows that he and his associates are being scrutinized. The point is that regardless of the motivation, there is no evidence that Defendant has returned to drug trafficking. Although Defendant has three previous convictions, the most recent one is from 1994 -- about 17 years ago. Nor have the circumstances changed sufficiently for us to find that notwithstanding conditions of bond we intend to order, Defendant will now return to drug trafficking despite the current charges, and despite knowing that his alleged associates are serving lengthy sentences for their actions. Ultimately, we find and conclude that despite the presumption, which the Defendant has met, the Government's concerns, while legitimate, do not constitute clear and convincing evidence that there are no conditions or combination of conditions that would reasonably assure the safety of the community if Defendant were released.*fn4 We next modify the bond and conditions imposed on Defendant's release to further "reasonably assure" Defendant's presence and the safety of the community.
IV. MODIFICATIONS TO BAIL ORDER
Although we deny the Government's Application for pre-trial detention, and generally affirm Judge Woehrle, we order the following modifications to the bail order. We conclude that these modifications are needed to satisfy us that we have reasonably assured against flight and danger. Thus, we now order that all of the conditions of bond Judge Woehrle ordered shall remain with the additions/modifications set forth below.
The amount of the appearance bond is hereby increased to $150,000. Of that amount, $50,000 shall be fully justified with affidavits of surety signed by both Defendant's sister and his brother-in-law, with deeding of their home. The remaining $100,000 shall be supported by additional affidavits of surety signed by Defendant's sister and his brother-in-law, but without further justification. Additionally, Defendant shall be subject to unannounced searches of his home by a pretrial services officer, accompanied by appropriate local law enforcement officers or Deputy United States Marshals, at a reasonable time, and upon reasonable suspicion that Defendant is engaging in criminal activity or violating the terms of his pre-trial release. Moreover, before approval of the satisfaction of the bond, Defendant shall present both his sister and his brother-in-law at a hearing before Judge Woehrle so that these sureties can be fully advised of the potential consequences of such an undertaking, and that it is clear that each is willing to serve as surety. As to the precise contours of such a hearing, we leave that to Judge Woehrle's judgment and discretion. This order constitutes our referral of such hearing to Judge Woehrle for her consideration.
For the foregoing reasons, the Government's Application seeking Defendant's detention is DENIED. The temporary stay of Judge Woehrle's order is hereby VACATED. The amount and conditions of the bond set by Judge Woehrle are modified as set forth above.
IT IS SO ORDERED.