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.
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)).
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 ...