United States District Court, N.D. Illinois, Eastern Division
October 12, 2005.
UNITED STATES OF AMERICA,
Luis Miranda, Defendant.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the government's petition
for review of the magistrate judge's order releasing Defendant
Luis Miranda ("Miranda") subject to certain conditions. The
magistrate judge stayed the order of release until 5:00 p.m.
today to give the government a chance to appeal. For the reasons
stated below, we revoke the release order of the magistrate
judge, find that detention is appropriate, and order that Miranda
be remanded to the custody of the U.S. Marshal.
Miranda is charged with one count of bank robbery, in violation
of 18 U.S.C. 2113(a). On October 12, 2005, at a hearing before a
magistrate judge, the government requested that Miranda be detained. The magistrate
judge denied the government's request and issued an order
releasing Miranda subject to certain conditions, including that
Miranda: 1) report to Pretrial Services, 2) execute a bail bond
with solvent sureties in the amount of $10,000, 3) be placed in
the custody of his wife, Melissa Miranda, and 4) participate in a
substance abuse therapy program.
The government requests, pursuant to 18 U.S.C. § 3145(a)
("Section 3145(a)"), that we review the magistrate judge's
release order, revoke the release order of the magistrate judge,
and grant the government's request for detention.
Section 3145(a), entitled "Review of a release order" provides
If a person is ordered released by a magistrate
judge, or by a person other than a judge of a court
having original jurisdiction over the offense and
other than a Federal appellate court
(1) the attorney for the Government may file, with
the court having original jurisdiction over the
offense, a motion for revocation of the order or
amendment of the conditions of release; and
(2) the person may file, with the court having
original jurisdiction over the offense, a motion for
amendment of the conditions of release.
The motion shall be determined promptly.
18 U.S.C. § 3145(a). The Seventh Circuit has stated that
"[a]lthough § 3145(a)(1) speaks of `review' by the district
judge, the court may start from scratch," but the judge "who
elects to do this . . . must follow the same procedures that
apply to the taking of evidence before the magistrate judge"
under 18 U.S.C. § 3142(f) ("Section 3142(f)"). United States v. Torres, 929 F.2d 291
, 292 (7th Cir.
1991). Section 3142(f), entitled "Detention Hearing" provides in
part the following:
The judicial officer shall hold a hearing to
determine whether any condition or combination of
conditions set forth in subsection (c) of this
section will reasonably assure the appearance of such
person as required and the safety of any other person
and the community
18 U.S.C. § 3142(f). The purpose of a pretrial detention hearing
is to decide "whether there are conditions of release that can
reasonably assure the appearance of a defendant at trial and, at
the same time, preserve the safety of the community." U.S. v.
Warneke, 199 F.3d 906
, 908 (7th Cir. 1999) (citing
18 U.S.C. § 3142(g)). Pursuant to 18 U.S.C. § 3142(g) ("Section 3142(g)"),
entitled "Factors to be considered," a court must consider
certain factors at a Section 3142(f) pretrial detention hearing,
which are as follows:
(1) The nature and circumstances of the offense
charged, including whether the offense is a crime of
violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person,
(A) the person's character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating to
drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or
arrest, the person was on probation, on parole, or on
other release pending trial, sentencing, appeal, or
completion of sentence for an offense under Federal,
State, or local law; and
(4) the nature and seriousness of the danger to any
person or the community that would be posed by the
person's release. In considering the conditions of
release described in subsection (c)(1)(B)(xi) or
(c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or
shall upon the motion of the Government, conduct an
inquiry into the source of the property to be
designated for potential forfeiture or offered as
collateral to secure a bond, and shall decline to
accept the designation, or the use as collateral, of
property that, because of its source, will not
reasonably assure the appearance of the person as
18 U.S.C. § 3142(g).
On October 12, 2005 this court held a detention hearing
pursuant to Section 3142(f). At the detention hearing, both the
government and Miranda were afforded an opportunity to make
arguments and present witnesses. The government requested that
Miranda be detained, and argued that Miranda is a threat to the
safety of others. In addition to his prior conviction for
unlawful use of a weapon, the government has argued that Miranda
is currently charged with a "violent bank robbery, during which a
note threatening a bomb and a gun pointed at an unresisting
employee was used." The government has also argued that Miranda
has a history of mental illness, suicidal tendencies, domestic
violence, and substance abuse.
Miranda has admitted his prior conviction and his history of
mental illness and substance abuse, but has argued that his
criminal history is the product of his mental illness and
substance abuse. Miranda has requested that he be placed in a
thirty-day in-patient drug treatment program at Lutheran Social
Services of Illinois in Elgin. According to Miranda, if he
violates any conditions of his release while in the Lutheran drug treatment program, the institution will immediately
report the violation to the court, and U.S. Marshals will be able
to immediately arrest him. Miranda further argues that he has
strong ties to the community, given that he is a life-long member
of Illinois, and that his wife and children live here.
We have considered the entire record in this matter, including
the factors set forth in Section 3142(g), and find that the
government has submitted sufficient evidence to indicate that
Miranda is a danger to the community. Miranda has prior felony
convictions for unlawful use of a weapon and possession of
cocaine, and is currently before the court pursuant to an
indictment for a violent crime. Furthermore, Miranda has a
serious history of mental illness and substance abuse. Miranda
has been convicted of a drug felony, and in September 2005,
Miranda tested presumptively positive for the presence of opiates
and cocaine in his urine. We also find that sufficient evidence
has been presented to indicate that Miranda poses a risk of
nonappearance. Miranda is currently on probation for past
felonies, and on September 26, 2005, Kane County issued an arrest
warrant for Miranda for a violation of his probation.
The court has considered the combination of conditions
articulated in 18 U.S.C. § 3142(b) and (c), and finds that no
condition or combination of conditions will reasonably assure
"the safety of any other person and the community" or Miranda's
appearance if he is released. 18 U.S.C. § 3142(e). Miranda has
already demonstrated that he is a threat to the safety of others
due to his prior conviction for an unlawful use of a weapon and the current charge against him
for bank robbery "by force and violence, and by intimidation."
Miranda has also shown that he is a poor bail risk, due to his
substance abuse, mental illness, and recent probation violation.
Miranda's argument that if he is placed in a drug treatment
program and violates any conditions of the program the court will
be notified is not persuasive. The question before the court is
whether Miranda is a threat to the safety of the community, and
notifying the court after Miranda has had a chance to cause harm
to community will not be an adequate preventative measure. The
court finds that there is no condition or combination of
conditions that will assure Miranda's appearance in court and the
safety of the community. The government has met its burden and
accordingly the court finds that pursuant to 18 U.S.C. § 3142(e)
that detention is appropriate in this case. CONCLUSION
Based upon the foregoing and a review of the record and the
testimony presented in court, we revoke the release order of the
magistrate judge, find that detention is appropriate, and remand
Miranda to the custody of the U.S. Marshal.
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