The opinion of the court was delivered by: Jeffrey T. Gilbert
Magistrate Judge aka "Ramon Nevarez-Garcia"
MEMORANDUM OPINION AND ORDER
THIS CAUSE coming to be heard on November 22 and 30, 2011, upon the Government's oral motion to detain the defendant MARGARITO LECHUGA pursuant to 18 U.S.C. § 3142, and on December 16, 2011, for a continued hearing with respect to issues relating to bond, and the Court having reviewed and considered the evidence and arguments presented at the hearings, therefore, the Court hereby finds as follows:
1. Defendant and two co-defendants are named in a six-count indictment returned on or about November 2, 2011 (the "Indictment"), in which they are charged with knowingly and intentionally possessing 500 grams or more of cocaine with intent to distribute that controlled substance, and with conspiring with each other to do so. Defendant and his co-defendants also are charged with using a telephone to commit the narcotics offenses charged in the Indictment.
2. Because Defendant was indicted and charged with a crime under the Controlled Substances Act, 21 U.S.C. § 801 et seq., for which the maximum term of imprisonment potentially is ten years or more, a rebuttable presumption arises that no condition or combination of conditions can be imposed that will reasonably assure the safety of any person or the community and the appearance of Defendant as required to respond to the charges. 18 U.S.C. § 3142(e). For that reason and others, the Government opposes Defendant's release on bond pending trial. Pretrial Services also recommends against releasing Defendant.
3. This is a close call, in the Court's view. The Court, however, has considered all of the arguments made by the Government and by Defendant as well as the recommendation of Pretrial Services. On balance, for the reasons discussed below, the Court finds that Defendant has rebutted the presumption of detention under 18 U.S.C. § 3142(e) and that there are a combination of conditions that can be imposed that will reasonably assure the safety of the community and Defendant's continued appearance in court to respond to the charges he is facing.
4. The Court conducted a detention hearing as required by 18 U.S.C. § 3142(f) on November 22 and 30, 2011. The hearing was recessed on November 22, 2011 to permit Defendant to have present in court his sister and brother-in-law (Maria and Mario Gomez) who have offered to post rental property they own located at 2483 South 10th Street in Milwaukee, Wisconsin ("the 10th Street Property") to secure a bond. The Government also presented some additional evidence at the hearing on November 30, 2011. The Court has considered the evidence and arguments presented at both hearings in its findings contained herein which is consistent with its oral rulings from the bench during the aforementioned hearings.
5. The rebuttable presumption under Section 3142(e) requires Defendant "to come forward with some evidence that if he is released he will not flee or endanger the community." United States v. Chavez-Rivas, 536 F. Supp.2d 962, 968 (E.D Wis. 2008). If the Defendant meets this burden of production, the presumption remains in the case as an evidentiary fact weighing against release, but the ultimate burden of persuasion as to danger to the community or risk of flight rests on the Government. Id. The Court finds that Defendant has rebutted the presumption by bringing forth at least the following evidence:
(a) Defendant has no family in Mexico, his country of origin. The Government does not dispute that fact. Although Defendant is undocumented in this country, all of his family is here. The woman with whom he has been in a committed relationship for approximately 25 years, his three children with her, his mother, a brother, and his sister and brother-in-law all reside in the Chicago-area or in Milwaukee, Wisconsin. Defendant's adult son from a previous relationship also resides in Milwaukee. Defendant's children and his sister and brother-in-law are United States citizens.
(b) Defendant does not have an extensive or violent criminal record. He was charged in 2006 in Berwyn, Illinois with driving without a license and other traffic-related offenses. The disposition of those charges is not noted in the Pretrial Services Report. Defendant also was arrested in 1993 in El Centro Imperial, California for being in this country illegally, sentenced to 60 days imprisonment and allowed to voluntarily depart the United States. He also was removed from the United States in 1999 at El Paso, Texas on an expedited basis. Defendant's counsel represented, without contradiction by the Government, this incident occurred at or close to the border and Defendant was allowed to depart voluntarily. Although the Court does not make light of the fact that Defendant has entered the country illegally in the past, that evidence also shows that Defendant has long-standing ties to, and a strong desire to live in, the Chicago area. During the last 25 years, Defendant has chosen to live here with his family and not in Mexico even though he has done so on an undocumented basis.
(c) Law enforcement agents seized one kilogram of cocaine from Defendant in May 2011 in connection with the crimes charged in the Indictment. Defendant, however, was not charged at that time. He was not arrested until after he was indicted in November 2011. During the intervening six months, Defendant did not flee and did not commit any other crimes that have been brought to the Court's attention. If law enforcement agents felt that Defendant was a serious threat to the safety of any person or the community, or a serious flight risk, one reasonably can question why he was not taken into custody in May 2011.
(d) Defendant's sister and brother-in-law have offered to post rental property they own in Milwaukee, Wisconsin (the 10th Street Property referenced earlier) to secure a bond for Defendant. When questioned by the Court on November 30, 2011, under oath, Mr. and Mrs. Gomez said that they bought that property with money they earned over many years and it is not encumbered by a mortgage. For tax purposes, this property is appraised at over $80,000. A recent independent appraisal, however, valued the property at $28,000, less than the Gomezs paid for it. When they received the low appraisal, the Gomezs offered to post the equity in their home as additional security for a bond. But the appraised value of their home was $4,000 less than the amount of the mortgage. The family then raised $7,500 in cash to post as additional security for a bond. When the Court asked the Gomezs on November 30, 2011, under oath, why they are willing to post the 10th Street Property that they bought with their owned hard-earned money, and from which they now receive rental income, Mr. Gomez said he knows that Defendant will not flee and, in particular, he will not go to Mexico because he has no family there.
For these reasons, the Court finds that Defendant has rebutted the presumption under Section 3142(e).
6. The Court has considered available information concerning each of the statutory factors enumerated in 18 U.S.C. § 3142(g) as well as the evidentiary presumption against release that remains even after Defendant has rebutted the presumption under 18 U.S.C. § 3142(e). In conducting this analysis, the Court is mindful that the standard is whether there are conditions "that will reasonably assure" the appearance of Defendant and the safety of the community. As the Seventh Circuit noted in United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986)(Bauer, J.), if the sole criteria were whether there is probable cause to believe that Defendant was involved in serious alleged criminal conduct, "few if any defendants in narcotics cases could ever rebut the presumption of dangerousness and thereby defeat pretrial detention." 783 F.2d at 706. The question is whether Defendant, presumed to be innocent of the charges against him, 18 U.S.C § 3142((j), should be detained or released pending ...