United States District Court, D. Arizona
ORDER
HONORAPLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE.
Pending
before the Court are Defendant Jermain Puga's Motion for
Reconsideration of Order Denying Release Conditions (Doc.
34), Defendant Daniel Puga-Hernandez's Amended Motion to
Reconsider Order Denying Conditions of Release (Doc. 57),
Defendant Puga-Hernandez's Motion for Status Conference
(Doc. 60), and Defendant Puga-Hernandez's Motion to
Modify Conditions of Release (Doc. 61). For the reasons
explained below, the Court will deny each motion.
Defendants
are charged by Criminal Complaint with conspiracy to possess
with the intent to distribute 3.58 kilograms of cocaine in
violation of 21 U.S.C. § § 841(a)(1) and
841(b)(1)(ii)(II), 14.26 kilograms of heroin in violation of
21 U.S.C. § § 841(a)(1) and 841(b)(1)(A)(i), and
39.08 kilograms of methamphetamine in violation of 21 U.S.C.
§ § 841(a)(1) and 841(b)(1)(A)(viii). (Doc. 1.) The
Complaint alleges the following: agents of the Drug
Enforcement Agency found the drugs during a vehicle search at
the Interstate 19 immigration checkpoint near Amado, Arizona.
(Id.) Agents removed the drugs, replaced them with
sham drugs, and placed an electronic monitoring device on the
vehicle. (Id.) Agents then tracked the vehicle to
Peoria, Arizona, where it was left in a restaurant parking
lot and picked up by Defendants. (Id.) Defendant
Puga-Hernandez drove the vehicle to an apartment complex with
detached garages while Defendant Puga followed in a separate
vehicle. (Id.) The apartment and garage were in
Defendant Puga's name, and he consented to a search.
(Id.) Agents found Defendant Hernandez inside the
garage along with the sham drugs. (Id.) Defendant
Puga-Hernandez allegedly admitted to transporting the
narcotics and having done so on previous occasions.
(Id.) Defendant Puga allegedly admitted that
“all he does is drive and his brother pays him $500 to
do so” and that he “knew that he would not be
paid that kind of money for something legitimate.”
(Id.)
Defendants
were arrested on April 8, 2019, and had Initial Appearances
on April 9, 2019. (Docs. 4, 5.) On April 11, 2019, Magistrate
Judge Leslie Bowman held Detention Hearings. (Docs. 9, 10.)
Judge Bowman ordered that Defendants be released on their own
recognizance, but she stayed that Order so that the
Government would have an opportunity to file an appeal. (Doc.
10.) The Government filed its Appeal from Judge Bowman's
Release Order on April 12, 2019. (Doc. 11.) A hearing on the
Government's Appeal (Doc. 11) was held on April 25, 2019,
and the Court overruled Judge Bowman's order of release
and ordered Defendants remanded to custody pending trial.
(Doc. 26.) On May 16, 2019, Defendant Puga filed his Motion
for Reconsideration of Order Denying Release Conditions.
(Doc. 34.) The Court ordered the Government to file a
Response (Doc. 40), which the Government did on June 06, 2019
(Doc. 47). Defendant Puga-Hernandez filed his Amended Motion
to Reconsider Order Denying Conditions of Release on July 1,
2019. (Doc. 57.)
A
rebuttable presumption arises under the Bail Reform Act that
“no condition or combination of conditions will
reasonably assure the appearance of the person as required
and the safety of the community” if the Court finds
probable cause to believe that a Defendant committed
“an offense for which a maximum term of imprisonment of
ten years or more is prescribed in the Controlled Substances
Act.” 18 U.S.C. § 3142(e)(3)(A). The heroin and
methamphetamine charges against Defendants trigger this
presumption because each charge would call for a sentence of
not less than 10 years upon conviction. 21 U.S.C. §
(b)(1)(A)(viii).
In
determining whether there are conditions of release that will
reasonably protect public safety and eliminate the risk of
flight, the Bail Reform Act directs courts to consider the
nature and circumstances of the offense charged, the weight
of the evidence against the person, and the history and
characteristics of the defendant, including his 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, record concerning appearance
at court proceedings, and whether the defendant is on
probation, parole, or on other release pending trial. 18
U.S.C. § 1342(g)(1)-(3).
Here,
the quantity of drugs seized and the significant potential
prison sentences faced by Defendants raise the presumption of
detention. 18 U.S.C. § 3142(e)(3)(A). The alleged
post-Miranda confessions constitute strong evidence
against Defendants. The other factors do not rebut the
presumption of detention.
Defendant
Puga indicates that his supervisor has stated that he is
welcome to return to work if he is released. (Doc. 34.)
Although the Court accepts Defendant's representation
that he would be able to return to work should he be
released, the Court also notes that Defendant had worked for
his current employer for only seven months before his arrest.
(Doc. 24.) Defendant Puga asserts that his mother and
fiancée both live in Phoenix, and that he has never
worked in Mexico. (Doc. 34.) The Court finds that while
Defendant Puga's Mexican heritage and Spanish fluency do
not weigh in favor of a conclusion that no combination of
conditions could prevent his flight, Defendant Puga not only
grew up in Mexico but regularly returns and has apparently
maintained strong ties within Mexico. (Doc. 34.)
Defendant
Puga-Hernandez, in turn, asserts that he has “a well
documented history of employment, complete with tax
compliance as evidenced by his tax return history.”
(Doc. 57.) In support of this assertion, Defendant
Puga-Hernandez provides tax exemption certificates for Red
Diamond Auto Glass (Doc. 57-1), invoices for Red Diamond Auto
Glass's purchase of materials (Doc. 57-2), customer
receipts for window repairs and replacements (Doc. 57-3), pay
stubs from Erickson Framing AZ LLC for 2016 and 2017 (Doc.
57-4), and tax returns and W-2 slips (Doc. 57-7). Defendant
Puga-Hernandez also provides news reports documenting
violence in the drug trade in Mexico. (Doc. 57-6.) Although
the proffered evidence tends to show that Defendant
Puga-Hernandez has some legitimate employment history, the
Court notes that his business entity Red Diamond Auto Glass
was not formed until 2019, and that Defendant
Puga-Hernandez's prior employment and business activities
appear to be intermittent. Moreover, besides his intermittent
economic activity, Defendant Puga-Hernandez has not provided
information suggesting that he has significant community ties
in Arizona that would deter his potential flight. He also
does not address his 2016 felony conviction for driving under
the influence, and the Court notes that he poses a risk of
nonappearances based on his self-reported substance use.
(Doc. 14.) In sum, Defendant Puga-Hernadez has also failed to
rebut the presumption of detention, and his Amended Motion to
Reconsider Order Denying Conditions of Release (Doc. 57) and
Motion to Modify Conditions of Release (Doc. 61) will be
denied.
Finally,
Defendant Puga-Hernandez's Motion for Status Conference
(Doc. 60), in which he requests a hearing to review the
status of his Motion to Reconsider Order Denying Conditions
of Release (Doc. 57), will be denied as moot. This Order
resolves Defendant Puga-Hernandez's Motion (Doc. 57) and
so a hearing to review its status is unnecessary.
Accordingly,
IT IS ORDERED that Defendant Puga's
Motion for Reconsideration of Order Denying Release
Conditions (Doc. 34) is denied.
IT
IS FURTHER ORDERED that Defendant
Puga-Hernandez's Amended Motion to Reconsider Order
Denying Conditions of Release (Doc. 57) and Motion to Modify
Conditions of Release (Doc. 61) are denied.
IT
IS FURTHER ORDERED that Defendant
Puga-Hernandez's Motion for Status ...