United States District Court, N.D. California, San Jose Division
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
December 17 and 20, 2019, the Court held bail review hearings
on a December 2, 2019 violation notice submitted by Pretrial
Services with respect to defendant Oscar Madrigal. Dkt. Nos.
94, 97. Mr. Madrigal was present at both hearings and
represented by counsel. Pretrial Services recommended that
Mr. Madrigal be remanded to custody, and the government
concurred. Mr. Madrigal opposed remand. For the reasons
stated on the record during the hearing and as set forth
below, the Court finds that remand is warranted here. This
decision may be appealed to the presiding judge, the
Honorable Edward Davila.
Madrigal is charged in an indictment with two counts of sale
of a firearm to a felon and aiding and abetting the sale of a
firearm to a felon. Dkt. No. 1 (counts 4, 10). Following his
initial appearance in this case, Mr. Madrigal was released
from custody on October 17, 2018 pursuant to a $100, 000
unsecured bond and several special conditions of release,
including a requirement that he not use or possess any
narcotic or controlled substance without a legal
prescription. Dkt. No. 19.
August 12, 2019, Mr. Madrigal pled guilty to to count four of
the indictment pursuant to a plea agreement. Dkt. Nos. 75,
76. He was not detained at that time but was permitted to
remain out of custody under supervision by Pretrial Services.
October 9, 2019, Pretrial Services reported to the Court that
Mr. Madrigal violated the terms of his release conditions
concerning the prohibited use of controlled substances on
several occasions in August and October 2019. The Court took
judicial notice of the violations and admonished Mr.
Madrigal. Dkt. No. 86.
December 2, 2019, Pretrial Services again reported that Mr.
Madrigal violated his release conditions by testing positive
for cocaine and THC on November 18, 2019, a test result that
was subsequently confirmed by Alere Toxicology Services. Mr.
Madrigal denies intentionally using either controlled
substance, although he was unable to account for the positive
Madrigal is due to be sentenced on February 3, 2020.
Madrigal pled guilty to a felony offense for which the
maximum term of imprisonment is 10 years. In these
circumstances, the law requires that Mr. Madrigal be detained
pending sentencing, unless the Court finds by clear and
convincing evidence that he is not likely to flee or pose a
danger to the safety of any other person or the community. 18
U.S.C. § 3143(a)(1). Mr. Madrigal bears the burden of
demonstrating that he is not likely to flee or pose a danger
to any other person or to the community. Fed. R. Crim. P.
46(c); see United States v. McCarns, No.
2:08-CR-00116-KJM, 2014 WL 1247732, at *4-5 (E.D. Cal. Mar.
Madrigal argues that he is neither a flight risk nor a danger
to the community. He acknowledges that he has a substance
abuse problem, but emphasizes that the treatment and
counseling he is currently receiving would likely not be
available to him if remanded to custody. He insists that he
did not intentionally use any controlled substances. He
speculates that he may have received medication for an arm
laceration that contained a chemical that produces a positive
test result for cocaine. He also speculates that the CBD he
ingested may not have been free of THC.
Services advises that Mr. Madrigal has not been candid about
his recent drug use. Pretrial Services does not believe Mr.
Madrigal is capable of adequate supervision, given his
repeated violations of his release conditions and his current
failure to even acknowledge use of controlled substances.
Pretrial Services recommends that the Court remand Mr.
Madrigal to custody for that reason. The United States also
advocates for remand based on Mr. Madrigal's continued
use of controlled substances and Pretrial Services'
concerns about supervision.
Madrigal has not provided a credible explanation for his
recent positive drug test. He also has not shown by clear and
convincing evidence that his release on the existing
conditions, or with enhanced drug testing, will reasonably
assure the safety of others and the community pending his
sentencing. Since the Court set release conditions in October
2018, Mr. Madrigal has failed to comply on several occasions,
and the Court weighs heavily Pretrial Services'
representation that adequate supervision of Mr. Madrigal will
not be possible if he remains out of custody. Accordingly,
the Court concludes that it is unable to ...