Opinion
CRIMINAL NO. 2:11-cr-01024-1
11-07-2011
UNITED STATES OF AMERICA, Plaintiff, v. MAURILIA GARCIA-GARZA, Defendant.
FINDINGS OF FACT, STATEMENT OF REASONS, AND
ORDER GRANTING GOVERNMENT'S MOTION FOR
REVOCATION OF ORDER OF RELEASE AND
MANDATING DEFENDANT'S PRE-TRIAL DETENTION
Pending before the Court is the Government's Motion for Review and Revocation of Order of Release Pursuant to Title 18, United States Code, Section 3145(a)(1). (D.E. 9.) The Court held a bond hearing on November 3, 2011. (D.E. 17.) The Court's findings of fact are based on the testimony at the bond hearing, the transcript of the detention hearing before United States Magistrate Judge Brian L. Owsley on October 14, 2011 (D.E. 18), and the information contained in the Pretrial Services Report (D.E. 16).
FINDINGS OF FACT
1. On October, 7, 2011, at approximately 9:35 p.m., Defendant Maurilia Garcia-Garza, a United States citizen, drove into the primary inspection area at the Sarita Border Patrol Checkpoint. Defendant was driving a gold-colored 1998 Lincoln Continental with Texas license plates. Riding as passengers in the backseat were Defendant's seven-month-old son and her seventeen-year-old brother, who are also United States citizens. 2. After a canine alerted to the rear bumper of Defendant's vehicle, Border Patrol agents requested and received permission to search the vehicle. Defendant was directed to a secondary vehicle inspection area. Agents discovered eleven bundles of cocaine hidden inside a compartment in the rear bumper. In total, agents seized approximately 11.52 kilograms of cocaine, which has a street value of over one million dollars. 3. Defendant was arrested and given her Miranda rights. Defendant stated to officers that she picked up the vehicle in Brownsville, Texas and was instructed to drive the vehicle to San Antonio, Texas where someone would pick it up. Defendant told officers that she was further instructed to wait three days in San Antonio, at which time the vehicle would be returned to her. Then, she was to drive the vehicle to Mexico, where she would be paid $2,500. Defendant stated that she knew there were drugs in the vehicle, but that she thought it was marijuana. 4. Defendant additionally admitted to the Border Patrol agents that she had made a similar trip approximately one week earlier. Defendant's seven-month-old son also accompanied her on this trip. Defendant indicated that she believed there were drugs hidden in the vehicle on that trip as well, and that money was hidden in the vehicle on the return trip. 5. Defendant attempted to assist agents in performing a controlled delivery to the drug traffickers, who were supposed to pick up the drugs in San Antonio; however, she was given new instructions by the traffickers to take the drugs to Houston. At that point, Border Patrol chose not to proceed with the controlled delivery. 6. Defendant indicated to the Border Patrol agents that she believed the drugs belonged to the Gulf Cartel, which has a reputation for being a very dangerous and brutal criminal organization. The Cartel carries out human trafficking, narcotics smuggling, murders, threats of violence, and kidnappings in Mexico. 7. Defendant has strong family ties to Mexico. Defendant has a two-year-old daughter who is currently living with her father, a Mexican citizen, in Matamoros, Mexico. Defendant is close with her children's father and refers to him as her "boyfriend" or "husband." Defendant's grandparents are also Mexican citizens and live in Matamoros. 8. Defendant makes frequent visits to Mexico. Although Defendant is a United States citizen and a lifelong resident of Brownsville, Texas, prior to her arrest, she spent significant time in Mexico. Defendant would often spend weekends in Matamoros with her grandparents to allow her children to visit their father. Before her arrest in October, Defendant had made approximately sixty-one border crossings in 2011. 9. While Defendant's children are United States citizens, her boyfriend (the children's father) and her grandparents are Mexican citizens, and they do not have legal resident status in the United States. 10. Defendant indicated to Border Patrol agents that the individual who provided her with the vehicle and drugs also lived in Matamoros, Mexico, and she feared that if she cooperated with authorities, he would retaliate against her boyfriend and child. 11. Defendant is eighteen years old. She attended high school through the ninth grade. Defendant understands English, but she is more comfortable in Spanish. Defendant is unemployed and has never worked. 12. On October 26, 2011, a grand jury returned an indictment charging Defendant with one count of conspiracy to possess a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and one count of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2. Section 841(b)(1)(A) mandates a penalty of ten years imprisonment to life for anyone found to have possessed five kilograms or more of a substance containing a detectable amount of cocaine.
STATEMENT OF REASONS
1. Under 18 U.S.C. § 3142(e)(3)(A), there arises a presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed . . . an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.) . . . ." The Court finds that there is probable cause to believe that Defendant committed an offense under the Controlled Substances Act carrying a term of imprisonment of ten years or more; therefore, it is presumed that no condition, or combination of conditions, will reasonably assure Defendant's appearance before the Court or the safety of the community. 2. This presumption is subject to rebuttal. However, the presumption does not function as "a mere 'bursting bubble' that totally disappears from the judge's consideration after the defendant comes forward with evidence." United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989). Rather, the presumption may remain in the case as one factor that the Court may consider in its analysis. United States v. Fortna, 769 F.2d 243, 25-52 (5th Cir. 1985) (following United States v. Jessup, 757 F.2d 378, 380-84 (1st Cir. 1985)). Thus, even though the defendant produces evidence to rebut the presumption, "in making its ultimate determination, the court may still consider the finding by Congress that drug offenders pose a special risk of flight and dangerousness to society." Hare, 873 F.2d at 798-99. 3. In the end, the burden of persuasion is on the government to establish by a preponderance of the evidence that Defendant's appearance at trial cannot be reasonably assured and/or that Defendant poses a threat to the community, but the presumption may be weighed by the Court as part of the evidentiary balance. Id. at 799; United States v. Trosper, 809 F.2d 1107, 1109 (5th Cir. 1987). 4. Defendant presented evidence that she is a United States citizen; that she is a life-long resident of Brownsville, Texas; that her mother and aunt live in the United States; that she cooperated with the government following her arrest; and that she fears retaliation from the Gulf Cartel. This shows that Defendant may be unlikely to return to Matamoros, Mexico for fear of retaliation, but it does not completely rebut the presumption that she is a flight risk and that she poses a threat to the community. 5. The government, however, presented substantial evidence that Defendant is a flight risk and that she poses a threat to the community: Defendant is eighteen years old and unemployed; Defendant is more comfortable communicating in Spanish than English; Defendant's grandparents live in Mexico; Defendant's two-year-old daughter is currently in Matamoros, Mexico with her boyfriend; Defendant's boyfriend is a Mexican citizen without legal resident status in the United States; Defendant has a close relationship with her boyfriend, and before her arrest, she frequently visited him (crossing the border a total of 61 times in 2011); Defendant spent significant time in Mexico, often staying with her grandparents on the weekends; Defendant was apprehended with a considerable quantity of drugs and faces a lengthy jail sentence; the evidence against Defendant is very strong; Defendant admitted to committing the same offense a week before; Defendant believes she was working for the dangerous and violent Gulf Cartel; and Defendant involved her seven-month-old son in her criminal activities. 6. Defendant argues that the government failed to present any evidence that, if released, Defendant would pose a threat to the community. The Court disagrees. Defendant admitted to Border Patrol agents that, on at least two occasions, she conspired with individuals she believed to be part of the Gulf Cartel to transport millions of dollars of cocaine into the United States, and that she used her seven-month-old son as part of a ruse to circumvent a Border Patrol checkpoint. This activity was inherently dangerous as violence is commonly associated with drug trafficking, especially where such large quantities of drugs and money are involved. After her arrest, Defendant indicated that she feared for the safety of her daughter and boyfriend in Mexico if she cooperated with Border Patrol agents. Consequently, releasing Defendant not only potentially puts her in danger from acts of retaliation, but it also poses a risk to her children, family, friends, and others with whom she comes into contact. Moreover, involving her seven-month-old child in drug trafficking demonstrated not only poor judgment, but a callous disregard for his safety, and Defendant has presented no evidence or assurances for her children's safety if released. In sum, Defendant has failed to rebut the presumption with regard to community safety, and the government has demonstrated by a preponderance of the evidence that Defendant poses a risk to herself, her family, and others if released. 7. Furthermore, while Defendant presented evidence to rebut the presumption that she poses a flight risk, the government presented substantial evidence indicating that she is a flight risk. The presumption is not a bursting bubble, and therefore, the Court must consider the government's evidence as well. Considering Defendant's family ties to Mexico, her frequent trips to Mexico, her lack of ties to the United States (no employment, house, or automobile), her young age, the fact that her boyfriend and two-year-old daughter are currently living in Matamoros, Mexico, the seriousness of the charges against her, and the strength of the government's evidence, the Court concludes that the government has demonstrated by a preponderance of the evidence that Defendant poses a flight risk.
ORDER
For the foregoing reasons, the Court GRANTS the Government's Motion for Revocation of Order of Release (D.E. 9) and Defendant Maurilia Garcia-Garza is ORDERED DETAINED WITHOUT BOND pending trial.
Defendant is committed to the custody of the United States Marshal or his designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. Defendant shall be afforded reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the government, the person in charge of the corrections facility shall deliver Defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE