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United States v. Nunez

July 22, 2009


The opinion of the court was delivered by: Jeanne E. Scott United States District Judge


JEANNE E. SCOTT, U.S. District Judge

This matter comes before the Court on Defendant Jose Luis Hernandez Nunez's Appeal of Magistrate Judge's Detention Order and Request for a De Novo Hearing (d/e 23) (Appeal). Defendant Nunez is charged with possession with intent to distribute 40 kilograms of a mixture or substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Indictment (d/e 8). At the preliminary hearing, Nunez initially waived detention in a hearing before the United States Magistrate Judge Byron G. Cudmore. Minute Entry entered April 27, 2009. The Court, however, has no record of this hearing because the Magistrate Court's recording equipment failed to operate properly. See Remark entered by Courtroom Clerk entered June 3, 2009 (d/e 15). Nunez subsequently filed a request to review the detention order. Defendant's Request to Review of Detention Order (d/e 13). Judge Cudmore denied this request. On appeal, this Court directed Judge Cudmore to conduct a detention hearing because of the lack of a record of the April 27, 2009, hearing in which Nunez waived his right to a detention hearing. Opinion entered June 11, 2009 (d/e 17).

Judge Cudmore then conducted the detention hearing on June 25, 2009. The Court has reviewed the recording of that hearing. The Court directs the Clerk's Office to place a copy of the recording in the Court's file. On July 6, 2009, Judge Cudmore then entered an order detaining Nunez. Order of Detention entered July 6, 2009 (d/e 22) (Order of Detention). Nunez now appeals that Order. For the reasons set forth below, the Court affirms the Order of Detention.

Nunez is entitled to appeal a detention order to this Court. This Court must rule on the appeal promptly. 18 U.S.C. § 3145. This Court, further, reviews this matter de novo. See United States v. Eaken, 995 F.2d 740, 741 (7th Cir. 1993). The audio recording from the June 25, 2009, hearing, along with the briefs and other materials filed by the parties before Judge Cudmore, are sufficient to provide a basis for prompt de novo review.

The Court, therefore, does not require another hearing. Also, in order to provide prompt consideration of this appeal, the Court will not wait for a response from the Government.


The Magistrate Court conducted the detention hearing by means of proffer, as authorized by statute. 18 U.S.C. § 3142(f). The proffer from the Government established that on April 17, 2009, Nunez was driving a truck northbound on Interstate 55 in Logan County, Illinois. He was stopped by Illinois State Trooper Nate Miller for having improperly tinted windows and possibly a cracked windshield. Nunez then consented to a search of his vehicle. The search uncovered 40 kilograms of cocaine. Nunez was arrested. Nunez stated that he was a Missouri resident. He subsequently again told law enforcement officials that he was a Missouri resident. The Government further proffered information that Nunez was a citizen of Mexico who actually resided in California. Nunez had a California drivers license. He subsequently secured a Missouri drivers license and surrendered his California license.

Nunez proffered that he is a legal resident alien and has no prior criminal record. He resides in Exeter, California, with his wife, his adult daughter and son, and his son's wife. Nunez represented that he has lived in the United States for thirty years. His children were born in the United States. He worked for 19 years for Cal Western Farms. Six years ago, Nunez started a trucking business. Nunez employs a bookkeeping service to keep the records of his trucking business. Nunez is an active member of Sacred Heart Church in Exeter, California. Nunez's brother Manuel Nunez lives in a nearby community of Farmersville, California. Nunez's best friend and godfather of his children, Socorro Graciola, also lives nearby in California. Nunez represented that he, Manuel Nunez, and Graciola, would all put their homes up as collateral for a bond for his release. Nunez provided no evidence as to the respective homeowner's equity in any of these properties.


The purpose of the detention hearing was to determine whether a condition or combination of conditions placed on the release of Nunez from custody will reasonably assure: (1) the appearance of Nunez as required in this proceeding, and (2) the safety of any other person and the community. If no such condition or combination of conditions exists, then Nunez must be detained before trial. 18 U.S.C. § 3142(e). This Court reviews this matter de novo. This Court must consider the following factors in deciding whether a condition or combination of conditions of release exists that will ensure Nunez's appearance in this proceeding and protect individuals and the community:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including --(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, ...

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