Opinion
Criminal Action No. 3:01-CR-349(05)-G
January 4, 2002
MEMORANDUM ORDER
This case is before the court on the motion of the defendant Paul Castillo Villarreal ("Villarreal") for expedited review, pursuant to 18 U.S.C. § 3145(b), of the magistrate judge's order entered on October 9, 2001, in which the magistrate ordered Villarreal released on the condition, among other things, that he "execute a bail bond with solvent sureties in the amount of $25,000." Order Setting Conditions of Release, filed October 9, 2001, at 2. Upon a de novo review of the record, the court declines to revoke or amend the October 9 order and thus denies the defendant's motion.
I. AVAILABLE INFORMATION
See 18 U.S.C. § 3142(g) (the judicial officer shall "take into account the available information concerning [the listed factors]"); FED. R. EVID. 1101(d)(3) (rules of evidence inapplicable). See also United States v. Golding, 742 F.2d 840, 841-42 (5th Cir. 1984).
Villarreal has been indicted for knowingly and intentionally possessing with the intent to distribute in excess of 500 grams of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, or aiding and abetting that offense, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii), and 18 U.S.C. § 2. Indictment filed November 7, 2001. At the detention hearing, Villarreal was alleged to have negotiated the sale of two pounds of methamphetamine, and to have participated in the transfer of one pound of methamphetamine. Tape recording of the 10-09-01 hearing. Furthermore, the arresting officer testified that Villarreal attempted to flee the scene when the arrest began. Id.
At the time Villarreal was arrested, he had a prior DWI conviction for which he served jail time, and he also had three bond forfeitures — in 1991, 1994, and 1995, which stemmed from a 1989 case. Id. Villarreal was employed for all of his adult life until he was disabled when an infection caused him to become legally blind in one eye. Id. He has lived in a permanent residence with his girlfriend for the past four years, supporting both of them with the disability check he collects from the government. Id. Villarreal has significant ties to the community — he has lived all of his life in Dallas and has family here, including his brother, daughter, and mother, who were all present at the hearing. Id. He is also the father of four other children, all male. Id. Both the defendant's brother and his girlfriend testified that he did not have a drug problem. Id. The defendant's girlfriend further testified that she did not use drugs. Id.
The defendant's brother and daughter testified that they would be willing to put up $1000 in support of a bond. Id.
II. ANALYSIS
When reviewing a pretrial release order, the district court "acts de novo and makes an independent determination of the proper pretrial detention or conditions for release." United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985), cert. denied, 479 U.S. 950 (1986); see also United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992), cert denied, 507 U.S. 940 (1993). This determination is based on the evidence presented to the magistrate judge. See United States v. Baker, 703 F. Supp. 34, 36 (N.D.Tex. 1989).The defendant's indictment for the instant offense is a determination that he probably committed a drug trafficking crime, for which a term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. United States v. Trosper, 809 F.2d 1107, 1110 (5th Cir. 1987). Therefore, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure Villarreal's appearance as required, or the safety of any other person and the community. See 18 U.S.C. § 3142; see also Rueben, 974 F.2d at 586. A determination of detention may be based on either the likelihood of the defendant's appearance or the safety of others. See Fortna, 769 F.2d at 249. The risk of continued narcotics trafficking on bail constitutes a risk to the community. United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989).
As for the issue of danger to the community, although the instant alleged offense indicates that the defendant poses a danger to the community, Villarreal does not have a criminal history other than an previous DWI conviction and an arrest for a burglary which apparently was not pursued by the state authorities. It appears that he has had no other involvement with law enforcement other than traffic tickets. Additionally, Villarreal's brother and girlfriend each testified that he does not have a drug problem. On the other side of the ledger, the court must consider the statutory presumption in 18 U.S.C. § 3142(e), which reflects "the finding by Congress that drug offenders pose a special risk of flight and dangerousness to s plaintiff's society." Rueben, 974 F.2d at 586. All in all, the court finds that Villarreal has rebutted the presumption against pretrial release on the issue of danger to the community or to other individuals.
On the issue of appearance, "the judicial officer must determine that it is more likely than not that no condition or combination of conditions will reasonably assure an accused's appearance." United States v. Westbrook, 780 F.2d 1185, 1189 (5th Cir. 1986). The court finds that, with an appropriate bonding requirement, Villarreal will likely appear. 18 U.S.C. § 3142 provides:
Given Villarreal's history of bond forfeitures, this court agrees with the magistrate judge that only a $25,000 bond with sufficient surety, together with other conditions of release imposed on Villarreal, will reasonably assure his appearance at trial.
If the judicial officer determines that the release [without conditions] . . . will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person [subject to conditions] . . . [but] [t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person.
However, Villarreal was not detained based solely on his inability to post a secured bond. Rather, he was appropriately detained only after the magistrate determined that no other available condition for pretrial release would reasonably assure his appearance at trial. See, e.g., Westbrook, 780 F.2d at 1188 (holding that the defendant's inability to post a surety bond did not require his release under 18 U.S.C. § 3142(c)). After due consideration of the factors listed in 18 U.S.C. § 3142(g), the court concludes that there are no other conditions or combination of conditions enumerated in 18 U.S.C. § 3142(c), which will reasonably assure Villarreal's appearance and the safety of the community. Therefore, the court declines to revoke or amend the order of the magistrate judge entered on October 9, 2001.
III. CONCLUSION
For the reasons stated above, the defendant's motion for review of the magistrate judge's order of October 9, 2001 is DENIED.