The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge United States District Court
RULING RE PRE-TRIAL RELEASE VIOLATION
In the first superseding indictment, the United States Government charged defendant Patrizio Lopez-Garcia with transporting illegal aliens and conspiracy to transport illegal aliens. The government alleges the conspiracy began no later than 2004 and continued up to and including the date of the indictment, April 20, 2011. The government further alleges defendant continued to engage in transport- ing and aiding and abetting illegal aliens while out on pretrial release thus violating the conditions of release. The Court heard argument and testimony regarding the alleged violation. The Court now considers whether defendant violated his pretrial release, and if so, what appropriate recourse applies.
On December 22, 2010 Border Patrol Agents arrested defendant. The next day, the government filed a complaint charging defendant with violating the immigration laws of the United States by transporting two illegal aliens, Jose Florez-Ruiz (aka Javier Villa-Calderon) and Ricardo Perez-Ponce in violation of Title 8 U.S.C. §1324 (a)(1)(A)(ii). In the probable cause statement that accompanied the complaint, the same two illegal aliens gave definitive evidence implicating defendant in their illegal entry into, and movement within, the United States. On December 23, 2010, the Court set conditions for pretrial release. [Doc. No.7.] Shortly thereafter, the Court released defendant on bond. On April 20, 2011, the government filed a first superseding indictment, charging defendant with, among other things, conspiracy to bring illegal aliens into the U.S. for financial gain, transporting illegal aliens, harboring illegal aliens and aiding and abetting. The government alleges this conspiracy lasted for at least seven years. On April 28, 2011, Pretrial Services filed a petition for summons for defendant on pretrial release, alleging that defendant conspired to bring in illegal aliens for financial gain, to transport illegal aliens, and to harbor them in violation of federal law, while on pretrial release. Border Patrol Agents took defendant into custody and the Court conducted a hearing on the pretrial release violations on May 19,
Title 18 U.S.C. Section 3148(b) governs violations of conditions of pretrial release. Under that statute, the court must enter an order of revocation and detention if the court finds (1) probable cause that the defendant committed another federal, state, or local crime during release, or (2) clear and convincing evidence the defendant violated some other condition; and, (3) no conditions will guarantee that defendant will not flee and will not pose a danger to some person or the community, or (4) the defendant is unlikely to abide by any set of conditions.*fn1 . If the court finds probable cause to believe the defendant violated the federal, state or local crime, a rebuttable presumption arises that no appropriate conditions of release exist. However, if the court finds conditions to assure it that the defendant will not flee and will not pose a danger to the community, the court must follow 18 U.S.C. §3142 and may amend the conditions of pretrial release accordingly.*fn2
The chronology of key events bears critically on the issues before the Court. Therefore, the Court provides the chronology of events below:
December 22, 2010 Defendant arrested.
December 23, 2010 Complaint filed. The probable cause statement supporting the complaint stated: "LOPEZ was read his Miranda rights and stated that he understood them and was willing to answer questions without the presence of an attorney. LOPEZ stated on Tuesday, December 21, 2010, he was in Tijuana, Mexico visiting family. LOPEZ stated he arrived at his family home in Jamul, California at approximately 10:00 PM that evening and two unknown males were there with his family. LOPEZ stated he allowed them to rest and spend the night in his house. LOPEZ stated the following morning at approximately 8:00 AM, the younger male, later identified as Jose FLORESRuiz, contacted a family member to deposit $400 in a Money Gram account. LOPEZ stated the Money Gram account was placed under his name. LOPEZ stated Florez and the other older male, later identified as Ricardo PEREZ-Ponce, were to pay him $100 in exchange for a ride to Temecula, California. LOPEZ stated the remaining $200 was just additional money which was to be given to FLORES." In addition, Border Patrol Agents Constance and Byland spoke with Lopez, who was driving a truck that carried two illegal aliens. The two occupants admitted they were citizens of Mexico and did not have any immigration documents allowing them to be in the United States legally. One of the illegal aliens, Perez, told the Border Patrol agents the two illegal aliens had walked through the mountains until they reached Lopez's house.
December 27, 2010 Court set conditions for pretrial ...