United States District Court, N.D. California
April 14, 2014
UNITED STATES OF AMERICA, Plaintiff,
HERI GARCIA, Defendant.
KANDIS A. WESTMORE, Magistrate Judge.
I. INTRODUCTION AND BACKGROUND
Defendant Heri Garcia is charged by indictment with one count of being a felon in possession of a firearm and ammunition on August 20, 2011 in violation of 18 U.S.C. § 922(g)(1).
On April 9, 2014, the United States moved for Defendant's detention pursuant to the Bail Reform Act, and asked for a hearing as permitted by 18 U.S.C. § 3142(f). A detention hearing was held on April 14, 2014. Defendant was present, in custody, and represented by Assistant Federal Public Defender Jerome Matthews. Assistant United States Attorney James Mann appeared on behalf of the Government. The Court considered the bail report prepared by Pretrial Services, as well as the arguments of defense counsel and counsel for the Government. Pretrial Services and the Government believe that the risk of non-appearance could adequately be mitigated with sufficient conditions, but contend that Mr. Garcia should be detained as a danger to the community. Based on the following findings and the considerations to be made under the Bail Reform Act, the Court concludes that sufficient conditions exist to assure Mr. Garcia's appearance and to mitigate any danger he may pose to the community should he be released. For the reasons set forth below, the Court, therefore, orders that Defendant be released on a $75, 000 bond with special conditions cosigned by three sureties.
II. RELEVANT LEGAL STANDARD
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 community danger. 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..." U.S. v. Chen, 820 F.Supp. 1205, 1208 (N.D. Cal. 1992) (Walker, J.) (quoting U.S. 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 rarely be denied." Motamedi, 767 F.2d 1403 at 1405; see also U.S. 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").
The court must order a defendant detained if the court finds that conditions cannot be fashioned to assure the defendant's appearance in court, or the safety of the community or another person. 18 U.S.C. § 3142(e)(1). The government bears the burden of proof on either prong. To prove that no condition or combination of conditions can assure that the accused will appear at required court hearings, the government must show by a preponderance of the evidence that the accused is a flight risk. United States v. Aitken, 898 F.2d 104, 107 (9th Cir. 1990). The government must prove that defendant poses a non-mitigable danger to the community through clear and convincing evidence. Motamedi, 767 F.2d at 1406-1407.
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 1403, 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.
III. RELEASE ORDER
Following a hearing under 18 U.S.C. § 3142(f), and considering the factors set forth in section 3142(g), the Court finds that a combination of conditions in section 3142(c) will reasonably assure Defendant's appearance in this case and the safety of any other person or the community. In particular, the Court considered the following facts and 3142(g) factors:
A. The Nature and Circumstances of the Offense and the Weight of the Evidence
Defendant Heri Garcia is charged by indictment with one count of being a felon in possession of a firearm and ammunition on August 20, 2011 in violation of 18 U.S.C. § 922(g)(1). The charged offense does not give rise to a rebuttable presumption of detention pursuant to 18 U.S.C. § 3142(e)(2).
The indictment alleges that Mr. Garcia possessed a firearm on or about August 20, 2011. According to the Government, Mr. Garcia was approached by police who reportedly observed him drinking from a beer bottle in a public parking lot. A search of the car he had been driving - which was registered to Mr. Garcia's sister - yielded a firearm located under the driver's seat. There is no evidence that Mr. Garcia was on parole or probation at the time. Counsel for the government and the defense cited DNA evidence that did not result in a match to Mr. Garcia's DNA, but could not exclude him as a possible contributor.
As to the weight of the evidence, while this is the least important factor, the evidence against Mr. Garcia does not appear to be conclusive at this point. Mr. Garcia was driving his sister's car, and it is unclear whether the DNA evidence will be sufficient to prove that Mr. Garcia possessed the firearm. As such, and given the presumption of innocence until proven guilty, this factor weighs in favor of release.
B. The History and Characteristics of Defendant and the Nature and Seriousness of the Danger to Any Person or the Community
Mr. Garcia has significant ties to the community. He is 33 years old and has resided with his significant other in Pittsburg, California for one year. He has lived in the community for more than 20 years and has a lot of family in the area. When he was a child, he lived in Mexico for 8 to 10 years. He was born in Riverside, California and is a U.S. Citizen. He received his GED in 1999 and has taken computer classes at Diablo Valley College.
Mr. Garcia's employment history also weighs in favor of release. He has been employed as an electrician trainee for the past year. Prior to that time, he worked at odd jobs, and also attempted to establish a computer repair business that ultimately failed due to an insufficient amount of customers. Although it has not been confirmed with his employer, if Mr. Garcia is released on bail, he may be able to return to his current employment.
Mr. Garcia's juvenile criminal history consists of a prior arrest for murder in 1996, and a juvenile adjudication for assault with a deadly weapon in 1997. He also sustained an adult conviction for involuntary manslaughter in 1997, and received a sentence of eight years in prison. Through defense counsel, Mr. Garcia proffered that the 1996 juvenile murder arrest arose from a killing that took place at a party attended by numerous guests. Police reportedly arrested and/or detained everyone at the party, including Mr. Garcia. The Court notes that Mr. Garcia was released and that no charges were filed. Regarding the conviction for involuntary manslaughter, Mr. Garcia reported that he was released in 2009 and served one year on parole.
On or about December 1, 2011, after his arrest by local authorities on the present offense, Mr. Garcia suffered a misdemeanor conviction for driving under the influence of alcohol. He has had no contacts with the criminal justice system since that time.
Mr. Garcia proposed three sureties: Teresa Orozco, his significant other; Maria Leticia Acosta, his elder sister; and Luis Acosta, Ms. Acosta's husband. All three sureties are gainfully employed and appear to have a close and loving relationship with Mr. Garcia. Ms. Orozco suffered a prior misdemeanor conviction for petty theft; Mr. and Ms. Acosta each stated that they have no criminal history. Ms. Orozco stated that she is willing to act as Mr. Garcia's custodian.
The Court is mindful of Mr. Garcia's criminal history and prior history of gang association. However, the Court also takes into consideration his recent conduct. Mr. Garcia was released from custody in 2009, and discharged from parole without any record of parole violations. Notably, the present offense allegedly occurred on August 20, 2011. Mr. Garcia was arrested but not charged by local authorities, and has remained out of custody since that time. Except for his misdemeanor drunk driving conviction, which occurred in December 2011, Mr. Garcia has had no contact with law enforcement since the date of his arrest for being a felon in possession of a firearm. The Court finds that the passage of over two years without any contact with the criminal justice system also militates in favor of release.
Finally, the Court notes that in addition to his family support, Teresa Orozco, Mr. Garcia's significant other and recommended custodian, is expecting to give birth to their child. The Court believes that Mr. Garcia's desire to return to work and provide financial support to his family will provide additional assurances that he will not pose a danger to the community.
C. Risk of Non-appearance
According to Pretrial Services, the factors that suggest Mr. Garcia may be a risk of flight/nonappearance include his history of international travel (to Mexico every summer from the ages of 8 to 13 with the last travel there about 15 years ago), a somewhat unstable residential history including that he resided in Mexico, and his history of excessive alcohol use. Mitigating factors include his long-time residence in this district, his family ties to the district, his apparent lack of travel for over 10 years, his lack of a passport and that he was employed prior to his arrest for the instant offense, lack of mental illness and the bail resources willing to co-sign on his behalf. As such, Pretrial Services and the Government agreed that there are conditions of release available to mitigate the risk of flight or nonappearance.
Defense counsel proffered that Mr. Garcia does not pose a risk of flight, noting that Mr. Garcia gave a DNA sample to law enforcement agents and was therefore aware that he was being investigated in connection with the present offense. Mr. Garcia was arrested by agents without incident at his home as he was preparing to leave for work. No evidence was presented at the hearing to suggest that there is reason to believe that Mr. Garcia has been engaged in criminal activity or that he otherwise presented a danger to the community since his arrests in 2011. Given his criminal history, however, the Court believes that the imposition of strict conditions of release that would allow him to continue to work and support his family is warranted.
D. Conclusion and 3142(c) Conditions of Release
The Court's inquiry with respect to the question of pretrial release is whether - considering the factors in section 3142(g) - any conditions or combination of conditions in section 3142(c) will reasonably assure Defendant's appearance and the safety of the community.
The Court finds that the Government has not demonstrated by a preponderance of the evidence that a risk of nonappearance cannot be mitigated, nor has it established by clear and convincing evidence that Defendant presents a current danger to the community that cannot be mitigated through appropriately strict conditions tailored to address those risks.
Pretrial release should be denied only in rare circumstances, and any doubt about the propriety of release should be resolved in the defendant's favor. Motamedi, 767 F.2d at 1405. The Court concurs with Pretrial Services' assessment that conditions may be imposed to reasonably mitigate Defendant's risk of non-appearance. The Court, however, disagrees with Pretrial Services' assessment that no conditions may be imposed that can reasonably assure the safety of the community.
In light of the foregoing, the Court believes that there are sufficient conditions to assure Mr. Garcia's appearance and to mitigate any potential danger he might pose to the community. For these reasons,
IT IS ORDERED that the U.S. Marshals release Heri Garcia from custody, and that Mr. Garcia abide the conditions set forth in the attached bond. Because the Government has indicated its intent to file a motion for revocation of this order pursuant to 18 U.S.C. Section 3145(a), execution of the order is HEREBY STAYED for twenty-four hours to permit counsel for the Government to file the motion.
IT IS SO ORDERED.