United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE
Phillip Louis Vasquez has appealed Judge Deborah Fine's
detention order. Doc. 20. The government has filed a
response. Doc. 21. Defendant seeks a prompt ruling (Doc. 20
at 4) and has not filed a reply. The Court will deny the
Court's review of the detention decision is de
novo. See United States v. Koenig, 912 F.2d
1190, 1192-93 (9th Cir. 1990). The Court must “review
the evidence before the magistrate” and any additional
evidence submitted by the parties “and make its own
independent determination whether the magistrate's
findings are correct, with no deference.” Id.
at 1193. Under the Bail Reform Act of 1984, Defendant must be
detained if the Court finds that no condition or combination
of conditions will reasonably assure his appearance at trial.
18 U.S.C. § 3142(e).
government contends that the Court should affirm the
detention of Defendant because he is a flight risk. The
government must prove Defendant is a flight risk by a
preponderance of the evidence. United States v.
Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985).
defendant is charged with two counts of Distribution of a
Controlled Substance in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C), offenses which carry a maximum term
of imprisonment of 20 years. Thus, “it shall be
presumed that no condition or combination of conditions will
reasonably assure the appearance of the person as
required[.]” 18 U.S.C. § 3142(e)(3)(A). This
presumption imposes a burden of production on Defendant, but
the burden of persuasion remains with the government.
United States v. Hir, 517 F.3d 1081, 1086 (9th Cir.
2008). The presumption does not disappear if it is rebutted,
but instead “‘remains in the case as an
evidentiary finding militating against release, to be weighed
along with other evidence relevant to factors listed in
§ 3142(g).'” Id. (quoting United
States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986)).
Court must consider four factors in determining whether
pretrial detention is warranted: (1) the nature and
seriousness of the offense charged; (2) the weight of the
evidence against Defendant; (3) Defendant's character,
physical and mental condition, family and community ties,
past conduct, history relating to drug and alcohol abuse, and
criminal history; and (4) the nature and seriousness of the
danger to any person or the community that would be posed by
Defendant's release. 18 U.S.C. § 3142(g).
first two factors favor detention. Defendant concedes that
the sale of methamphetamine can be a serious and dangerous
offense, and that the weight of the evidence favors
detention. Doc. 20 at 2.
third factor is the most relevant here, and persuades the
Court that detention is warranted. For the past year, the
23-year-old Defendant has been “essentially
homeless” and “couch hopping” between
various residences. Doc. 9 at 2. He is unemployed.
Id. He is a methamphetamine addict and uses the drug
daily. Id. at 3. His family has offered to send him
to treatment several times, but he has refused. Id.
The family staged an intervention, but Defendant refused to
cooperate and stated that he prefers to get high.
Id. Defendant also suffers from mental health
recently lived with his grandfather, but his grandfather was
forced to kick Defendant out when he began stealing things
from the home and inviting unwanted guests. Id. at
2. Defendant's father initially said Defendant could not
return to his home, which he shares with three young
children. Id.; Doc. 14 at 2. His father reconsidered
and agreed to allow Defendant into his home “if he
completed in-patient substance abuse treatment first.”
Id. The Pretrial Services Officer reported that
Defendant's father “would be suitable for third
party custodial placement following acceptance and completion
of Crossroads for Men.” Id. When Defendant was
screened at Crossroads, however, he was found unsuitable for
placement there. Doc. 19 at 1. Defendant therefore has not
met the conditions under which his father would allow him
back into the home and under which the Pretrial Services
Officer found his father to be a suitable third party
custodian. Defendant has not otherwise identified a stable
residence. Doc. 9 at 2.
fourth factor is not relevant in this flight-risk case.
Considering the first, second and third factors, and the
unrebutted statutory presumption, the Court concludes that
Defendant should be detained pending trial.
IS ORDERED that Defendant's appeal of Judge
Fine's detention ...