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United States v. Elder

United States District Court, Ninth Circuit

May 23, 2013

AMBER ELDER, Defendant.


WILLIAM Q. HAYES, District Judge.

The matter before the Court is the Motion to Revoke the Detention Order (ECF No. 27) filed by Defendant Amber Elder.


On April 17, 2013, Defendant was arrested at the Interstate 8 westbound check point in Pine Valley, California and place under arrest for a violation of 8 U.S.C. 1324 alien smuggling.

On April 18, 2013, Defendant was brought before a United States Magistrate Judge for an initial appearance. Defendant was appointed counsel.

On April 24, 2013, Defendant appeared with counsel before the Magistrate Judge. The Magistrate Judge set bond as no bail and set a further detention hearing for April 26, 2013. Counsel for Defendant moved to continue the detention hearing.

On May 7, 2103, the United States Magistrate Judge held a detention hearing. The Court moved to detain Defendant pending trial based upon a risk of flight. Defendant requested release upon a personal appearance bond in the amount of $10, 000, secured by one signature "which would likely be" Defendant's father's live-in girlfriend. (ECF No. 37 at 9). Defendant relied upon her deep ties to the San Diego area, her lack of a serious criminal history, and her efforts to seek drug treatment through her membership in Alcoholics Anonymous to support her release on the proposed bond.

The Magistrate Judge stated "the burden is on the Court to establish by a preponderance of the evidence that [the defendant is] a flight risk in order to be detained." (ECF No. 37 at 9). The Magistrate Judge concluded that the bond package presented by defendant was insufficient to assure the her appearance and that no conditions can adequately assure the Defendant's presence at future proceedings. The Magistrate Judge specifically relied upon Defendant's history of failures to appear and her substance abuse problems. The Magistrate Judge reviewed the occasions from age 19 to age 20 in which the Defendant failed to appear on multiple cases of disorderly conduct and summarized: "So all together on five separate cases, you have failed to appear five, six, ten times and probation was revoked multiple times in those five cases." (ECF No. 37 at 10). The Magistrate Judge noted that the Defendant moved to North Carolina when she turned 22, that the Defendant was charged with larceny in North Carolina, and that the Defendant "again failed to appear." Id. at 11. The Magistrate Judge then noted that the Defendant returned to Oceanside earlier this year when she was 24 and was charged in a case that was later dismissed "but there was a failure to appear after a written promise to appear." Id. The Magistrate Judge concluded that the Defendant has a "history of not appearing." Id.

The Magistrate Judge noted that the Defendant has a drinking problem specifically noting her history of underage drinking and numerous arrests for public intoxication. The Magistrate Judge concluded:

So based on your history and characteristics... or the lack of a sufficient bond package, I find that there is a preponderance of... evidence to detain you, that there are no conditions or combination of conditions that-that would guarantee or at least persuade you to return to court for future court appearances. There's - you clearly have a drug problem, an alcohol problem, and for all those reasons I'm ordering you detained and held in custody without bail. This order is entered without prejudice.

(ECF No. 37 at 12).

On May 10, 2013, Defendant filed the motion to revoke the order of detention. Defendant contends that the Magistrate Judge improperly shifted to her the burden to establish that she was not a flight risk and failed to consider numerous conditions short of detention that would assure her appearance at future proceedings.

On May 17, 2013, the Magistrate Judge entered a Detention Order. The Order addressed the weight of the evidence, the history and characteristics of the Defendant, and the nature and seriousness of danger posed by release. The Order concluded in part that "Defendant's past conduct gives the court no confidence that she will return to Court as ordered if released." (ECF No. 35 at 3).

On May 17, 2013, an Information was filed charging that the Defendant knowingly transported an alien within the Southern District of California in violation ...

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