United States District Court, N.D. Illinois, Eastern Division
November 2, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JESUS TRINIDAD CARO, Defendant.
The opinion of the court was delivered by: MARIA VALDEZ, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on the request of the
government to detain the defendant, Jesus Trinidad Caro, pending
his trial on charges of knowingly and intentionally possessing
with the intent to distribute a controlled substance (at least
five kilograms of cocaine) in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. In this case, the government seeks to detain
the defendant, under Section 3142(f)(1) of the Bail Reform Act of
1984 (Act), on the grounds that: (1) the case involves a drug
offenses with maximum sentences of ten years or more; and (2)
that the defendant poses a risk of flight.
Section 3141(f) of the Act "carefully limits the circumstances
under which detention may be sought to the most serious of
crimes." United States v. Salerno, 481 U.S. 739, 747 (1987).
Stated another way, pretrial detention is "an exceptional step."
United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991)
(citing Salerno, 481 U.S. at 749). Thus, under the Act,
pretrial release is mandated unless this Court finds that,
regardless of any combination of conditions, "such release will
not reasonably assure the appearance of the [defendant] as
required or will endanger the safety of any other person or the
community." 18 U.S.C. § 3142(b); see also § 3142(e).
A rebuttable presumption in favor of detention arises,
18 U.S.C. § 3142(e), in part, when probable cause exists in a case
involving drug charges with a maximum term of imprisonment of ten
years or more, 18 U.S.C. § 3142(f)(1)(C). This Court having
previously found probable cause in this matter, accordingly agrees with the government that
the statutory rebuttable presumption in favor of detention is
applicable. And yet, the inquiry does not end there as the
government carries the ultimate burden of persuasion before this
Court. United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th
Cir. 1991) ("[T]he burden of persuasion regarding risk-of-flight
and danger to the community always remains with the
government."). Even if the statutory presumption is rebutted, it
must be considered along with all other relevant factors set out
in the Act to determine whether any condition or combination of
conditions will reasonably assure that the defendant's pretrial
release will not pose a danger to the community and assure his
presence at trial. United States v. Portes, 786 F.2d 758, 765
(7th Cir. 1985).
Under the Act a defendant may be denied bail if, after a
hearing, the government demonstrates by clear and convincing
evidence, 18 U.S.C. § 3142(f)(2)(B), that "no condition or
combination of [release] conditions will reasonably assure . . .
the safety of the community," 18 U.S.C. § 3142(e). See Portes,
786 F.2d at 764. The government must show by a preponderance of
the evidence that the defendant is a risk of flight and that no
conditions or combinations of conditions will reasonably assure
the defendant's presence. Id. at 765 (citing United States v.
Chimurenga, 760 F.2d 400, 405-06 (2d Cir. 1985); United States
v. Orta, 760 F.2d 887, 891 n. 20 (8th Cir. 1985)).
Defendant in this case is charged with offenses that create a
rebuttable presumption of detention. The statutory presumption
shifts the burden of production to the defendant to come forward
with some evidence that if released he will not flee or endanger
the community. Portes, 786 F.2d at 764. "The burden of
production is not a heavy one to meet. . . ." U.S. v.
Dominguez, 783 F.2d 702, 707 (7th Cir. 1986). "Any evidence
favorable to a defendant that comes within a category listed in §
3142(g)" can suffice. Dominguez, 783 F.2d at 707.
In making the determinations as to whether the defendant is a
danger to the community and/or a flight risk, the Court must take
into account the available information concerning the following major factors, which are specifically set forth in
Section 3142(g) of the Act:*fn1
§ 3142(g)(3) Caro's History and Characteristics
Section 3142(g)(3) instructs the Court to consider the
defendant'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, as well as whether he was
subject to any other criminal justice supervision at the time of
the charged offense.
Caro is a lawful permanent resident of the United States and
has lived all but the first three years of his life in El Paso,
Texas. He has some relatives in Mexico, whom he denies any
contact. He is married and has been in a relationship with his
wife since 1997. He also has two children that are U.S. citizens.
He and his wife recently purchased a home. Mr. Caro has been
steadily employed since 1989. Caro has a minor criminal record
involving three misdemeanor offenses. The defendant also denied
any history of substance abuse, but tested presumptively positive
for the presence of cocaine on October 14, 2005.
The government asserts that all of Caro's "ties to the
community" are outside of our district and greater weight should
be given to community ties in the district in which the charges
are pending. The defense counters that community ties under the
Act encompass more that just a review of the defendant's ties to
the charging district, thus the court should consider the
community ties to the United States in general.
The Act does not specifically address which "community" is
relevant for purposes of determining the strength of ties to the
community. And, the government's position makes sense, the ties
to the community that hold the greatest weight are the ties to
the community in which the charges are pending. Nonetheless, the weight of the case
authority seems to point to the consideration of ties to the
community so long as they are within the United States. See,
e.g., Troung Dinh Hung v. United States, 439 U.S. 1326, 1329
(1978) (focusing in part on defendant noncitizen's contacts in
California albeit he was charged in the Fourth Circuit);
Dominguez, 783 F.2d at 707 (focusing on a defendant Cuban
immigrant's community outside the Seventh Circuit, namely ties to
Florida and Nevada). If we are to consider Caro's ties to El
Paso, Texas as relevant to the inquiry under the Act, then the
balance of factors would tend to go in his favor.
§ 3142(g)(4) Danger to Community and Risk of Flight
The Court concludes that the government has not met its burden
of proving by clear and convincing evidence that Defendant Caro
is a danger to the community. The charges against him are
extremely serious. In addition, he has allegedly admitted to
knowing that he was transporting a controlled substance
(marijuana as opposed to cocaine). But the charge, at this stage
is an accusation. 18 U.S.C. § 3142(j). The weight of the evidence
against him is the "least important of the various factors."
U.S. v. Hammond, 205 F. Supp.2d 1157, 1165 (E.D. Wis. 2002)
(citing United States v. Chen, 820 F. Supp. 1205, 1207 (N.D.
Cal. 1992) (quoting United States v. Motamedi, 767 F.2d 1403,
1408 (9th Cir. 1985)).
"A defendant cannot be detained as dangerous under § 3142(e),
even if the presumption is not rebutted, unless a finding is made
that no release conditions `will reasonably assure . . . the
safety of the community. . . .'" Dominguez,
783 F.2d at 706-707. The nature and seriousness of the charge is only one
factor to be considered under the Act. 18 U.S.C. § 3142(g)(1).
Also identified are "the defendant's character, physical and
mental condition, family and community ties, past conduct,
history relating to drug and alcohol abuse, and criminal
history. . . ." United States v. Gebro, 948 F.2d 1118, 1121
(9th Cir. 1991). These factors weigh in favor of Defendant Caro's
release. Defendant has met his burden of rebutting the
presumption. However, the presumption "remains in the case as an
evidentiary finding militating against release, to be weighed along with the other evidence relevant to the factors
listed in § 3142(g)." Portes. 786 F.2d at 764.
On the issue of dangerousness, the government must point to
more than the charges to justify detention. Chen,
820 F. Supp. at 1207 (citing Motamedi, 767 F.2d at 1408). Defendant Caro has
presented information tending to show that he is not a danger. He
has a stable residence and employment in El Paso, Texas. His
prior criminal record is not extensive and consists of
misdemeanor offenses. He is in a stable relationship with his a
wife and minor children with whom he resides. The government does
not contest this evidence. Significantly, the government does not
explain why the conditions recommended by Pretrial Services will
not assure the safety of the community. "[E]vidence of economic
and social stability, coupled with the absence of any [recent]
criminal record, at least suggests that defendant would be less
likely to continue to engage in criminal activity while on
pretrial release." Dominguez, 783 F.2d at 706-707.
The government asserts that Caro's residence is close to the
U.S.-Mexico border, and if he is released, the risk of flight is
greater. This is certainly one factor for the Court to consider,
but it goes to the "conditions of release" rather than the
decision to release. The mere opportunity to flee is not enough
to justify detention. Chen, 820 F.Supp. at 1208 (citing U.S.
v. Himler, 797 F.2d 156, 162 (3d. Cir. 1986)). Despite the
statutory presumption, the ultimate standard for the Court in a
case like this remains one of "reasonable assurance" that the
defendant will appear for trial and will not endanger the
community. Reasonable assurance, however, should not be mistaken
for absolute assurance. The Court cannot order detention merely
because there are no conditions that would guarantee the
defendant's appearance at trial. Portes, 786 F.2d at 764 n. 7
("The conditions need not guarantee appearance but they must
reasonably assure appearance") (citing Orta,
760 F.2d at 891-92).
Further, defendant has reasons to stay and not flee. He has a
home, two U.S. citizen children and a U.S. citizen wife who
currently receives U.S. military benefits monthly in the amount of $1,450, a fairly substantial sum. Although his status
as a lawful permanent resident does expose him to the potential
for removal proceedings if convicted, he may also seek to dispute
the immigration proceedings and attempt to stay in this country.
Mr. Caro has resided in the U.S. since he was three years old. He
does not have strong family ties to Mexico. If he leaves the
U.S., he will most likely leave his wife and children behind. It
is questionable that Luz Caro will go on the lam with her husband
and give up her military benefits and subject her U.S. citizen
children to lesser opportunities than those afforded in the
The Court is reluctant to conclude that a serious flight risk
or danger to the community must be found in an otherwise stable
life solely because the charge asserted by the government carries
lengthy prison sentence and because his ties to the community,
while substantial, are ties to El Paso, Texas. The Court has
considered the evidence on the factors, the rebuttal presumptions
invoked in the case, and the recommendation of Pretrial Services
to grant bond. The Court finds that the government has not meet
its overall burden and hereby orders the defendant released on a
$50,000 bond, partially secured by the residence located at 12628
Tierra Cuervo, El Paso, TX, and to the third-party custody of his
wife, Luz Caro, with the following special conditions:
1. Report to the Pretrial Services Office, as
2. Obtain no passport;
3. Travel restricted to the Southern District of
Texas and the Northern District of Illinois;
4. Avoid all contact, directly or indirectly, with
any persons who are or who may become a victim or
potential witness in the subject investigation or
prosecution including all co-defendants;
5. Refrain from possessing a firearm, destructive
device, or other dangerous weapon;
6. Refrain from use or unlawful possession of a
narcotic drug or other controlled substances; 7. Submit to any method of testing required by the
Pretrial Services Office for determining whether the
defendant is using a prohibited substance; and
8. Participate in a program of inpatient or
outpatient substance abuse therapy and counseling if
deemed advisable by the Pretrial Service Office.
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