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United States v. Pimental

United States District Court, N.D. California

February 14, 2014

Case UNITED STATES OF AMERICA, Plaintiff,
v.
EVAN PIMENTAL, Defendant.

DETENTION ORDER

KANDIS A. WESTMORE, Magistrate Judge.

I. BACKGROUND INFORMATION

Defendant Evan Pimental is charged in a criminal complaint for being in receipt or possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d).

Pretrial Services prepared a full bail study. On February 7, 2014, the Court conducted a detention hearing. Defendant was present, in custody, and represented by Assistant Federal Public Defender Edward Smock. Assistant United States Attorney Brigid Martin appeared on behalf of the government. For the reasons stated below, the court orders that Defendant be detained.

II. LEGAL ANALYSIS

The Bail Reform Act requires that in a pretrial posture, the government bears the burden of proving that a defendant poses a risk of flight and/or a danger to the community that cannot be mitigated through the imposition of conditions of release. If the government does not meet its burden, the court's duty is to fashion appropriate conditions that permit the defendant to remain out of custody during the preparation of his or her defense, while safeguarding against flight or danger to the community. Close cases should result in release: "[t]o give effect to the principle that doubts regarding the propriety of release be resolved in favor of the defendant, the court is to rule against detention in close cases." United States v. Chen, 820 F.Supp. 1205, 1208 (N.D. Cal. 1992) (Walker, J.) (citing United States v. Motamedi, 767 F.2d 1403, 1405-06 (9th Cir. 1985)).

A person facing trial generally shall be released if some "condition, or combination of conditions... [can] reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(c). In non-capital cases, pretrial release should be denied "[o]nly in rare circumstances." Motamedi, 767 F.2d at 1405; see also United States v. Salerno, 481 U.S. 739, 755 (1987) (upholding constitutionality of Bail Reform Act; "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception"). Bail hearings generally proceed by proffer, and the rules of evidence do not apply. 18 U.S.C. § 3142(f). At the hearing, the court determines whether any conditions in section 3142(c) will reasonably assure the defendant's appearance and the safety of the community or another person. Id. The Bail Reform Act "mandates release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required." Motamedi, 767 F.2d at 1405.

In evaluating whether pretrial release is appropriate, a court must consider (1) the nature and circumstances of the offense, (2) the weight of the evidence, (3) the history and characteristics of the person (including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug and alcohol abuse, criminal history, or record concerning appearance at court proceedings), and (4) the nature and seriousness of the danger to any person or the community posed by the person's release. 18 U.S.C. § 3142(g); Motamedi, 767 F.2d at 1407.

A. The Nature and Circumstances of the Offense and Weight of the Evidence

1. Nature and Circumstances of the Offense

Defendant is charged with being in receipt or possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). According to Special Agent Andrew D. Williams of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), on January 24, 2014, police officers from the Pleasanton and Hayward police departments executed a state search warrant at Defendant's residence in Hayward. At about 2:00 a.m. the Hayward Police Department was conducting surveillance at Defendant's address. When they noticed him leave in a tan Buick, they stopped and detained him. Pleasanton police officer Lewellyn entered Defendant's residence and encountered his mother Ariel Levy sitting on the living room floor.

During the search of the one bedroom apartment, various calibers of live ammunition, a shotgun, a fully automatic Maadi MISR AK-47 type machinegun, a fully automatic Velocity VMAC 9 machinegun, and various machinegun parts were found. The machineguns were concealed behind a false wall that was manufactured inside a closet of the apartment. Ms. Levy told officers that did not know the firearms were in the apartment. Later, Defendant told agents that he lived in the apartment with his mother.

Also recovered during the search were receipts/invoices in the name of "Michael Pimental" for the purchase of AK-47 parts and accessories, which could be used on a Maadi MISR AK-47 type machinegun, at Defendant's residence. Pursuant to the search, the officers also recovered Defendant's cell phone and downloaded the data contained in it. The data showed that on January 10, 2014, Defendant had sent an outgoing text message referencing his possession of a "full auto ak."

At the hearing, the attorney for the government presented additional information regarding the Defendant and the search of his residence. Specifically, the government proffered that Defendant has ties to Reno, Nevada and Fresno, California and that additional weapons were found in the defendant's apartment - one of which was a shotgun that he was holding for his friend from Fresno. Gun parts, tools and accessories were found in the apartment along with a bayonet and a camouflage backpack containing 100 rounds of ...


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