United States v. Gonzales ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-2089
(D.C. No. CR-95-538-MV)
CESAR GONZALES, (D. N.M.)
Defendant,
and
JASON DELATORRE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant-appellant Jason DeLaTorre appeals the district court’s denial
of release pending trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3145(c), and we affirm.
Defendant stands charged with multiple violations of various drug and
weapons laws, racketeering, conspiracy, murder, and attempted murder. Four
other defendants are also charged in the third superseding indictment. Defendant
was incarcerated after his arrest in October of 1995 as both a flight risk and
a danger to the community. See 18 U.S.C. § 3142(e). The district court
recognized that the magistrate judge considered both a flight risk and a danger to
the community, although the district court apparently confined its subsequent
de novo review and written analysis to flight risk. See 18 U.S.C. § 3145(b);
United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992) (district court
reviews magistrate’s pretrial detention order de novo), cert. denied, 507 U.S. 940(1993); United States v. Koenig, 912 F.2d 1190, 1192-93 (9th Cir. 1990) (same).
Following a hearing before the district court, the defendant’s motion for
pretrial release was denied. Specifically, the district court determined that
defendant was a flight risk and that no condition or conditions of release would
adequately assure his presence at trial. See 18 U.S.C. § 3142 (f-g). The court
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further recognized that although defendant has been in custody a considerable
length of time, given the nature of the offenses charged, the weight of the
evidence against him, defendant’s history and characteristics, and the nature and
seriousness of the penalties defendant faces, in “balancing defendant’s due
process interest with the risk society must accept, . . . the time has not yet come
when [defendant’s] continued detention arises to a constitutional violation of his
substantive due process rights.” Appellant’s App., Tab A at 11.
Defendant presents two arguments on appeal. He first contends that the
district court erroneously invoked the presumption of detention because defendant
faces a potential death sentence. He claims that the murder statute, 18 U.S.C.
§ 1959, is not one of the statutes under which the rebuttable presumption of
§ 3142(e) arises. Defendant’s second argument is that defendant’s continued
pretrial incarceration, now over two and a half years, violates the Due Process
Clause of the Constitution.
We review the district court’s order of pretrial detention independently with
due deference to the district court’s factual findings. United States v. Stricklin,
932 F.2d 1353, 1355 (10th Cir. 1991). Once the rebuttable presumption arises
under 18 U.S.C. § 3142(e) that no conditions of release will assure defendant’s
appearance and the safety of the community, the burden of production shifts to
the defendant. The burden of persuasion, of course, always remains with the
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government. The defendant’s burden of production is not a heavy one, but some
evidence must be produced. Id. at 1354-55; see also United States v. Cook, 880
F.2d 1158, 1162 (10th Cir. 1989).
Among other things, defendant is charged with conspiracy to distribute
Schedule II controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846;
using and carrying firearms in relation to drug trafficking crimes in violation of
18 U.S.C. § 924(I)(1); distribution of controlled substances under 21 U.S.C.
§ 841(b)(1)(B) and (C); and carrying and using a firearm during a crime of
violence in violation of 18 U.S.C. §§ 924(c)(1) and (2). Under § 3142(e), a
rebuttable presumption arises that no condition or combination of conditions will
reasonably assure the appearance of the person as required if there is probable
cause to believe the person committed an offense for which a maximum term of
imprisonment of ten years or more is prescribed under “the Controlled Substances
Act (21 U.S.C. § 801 et seq. ) . . . or an offense under section 924(c) . . . of title
18 . . . .”
The indictment constitutes a determination of probable cause. See United
States v. Stricklin , 932 F.2d at 1354. Defendant admits that under § 3142(e) “the
district court could properly presume that [defendant] presented a risk of
flight . . . .” Appellant’s Br. at 5. Moreover, the district court may not ignore the
presumption. See, e.g. , United States v. Cook , 880 F.2d at 1162 (error for district
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court to skip over rebuttable presumption of detention applicable when probable
cause to believe defendant has committed crime has been established, likening
provisions of § 3148 to § 3142). The district court’s concern that the possibility
of a death sentence might heighten the risk of flight is certainly relevant. See
United States v. El-Gabrowny , 35 F.3d 63, 65 (2d Cir. 1994) (no constitutional
violation in long pretrial detention where prospect of lengthy term in prison
provides great incentive to flee); United States v. Nichols , 897 F. Supp. 542, 547
(W.D. Okla. 1995) (prospect of lengthy prison term, life imprisonment or death
penalty provides defendant with great incentive to flee), aff’d , No. 95-6223,
61 F.3d 917 (table), 1995 WL 430191 (10th Cir. July 21, 1996). The district
court also analyzed the factors outlined in § 3142(g) and correctly determined that
the government had carried the burden of persuasion on the issue of risk of flight.
Defendant’s second argument is that his continued incarceration violates
his right to substantive due process. Here, the district court considered the
factors outlined in United States v. Millan , 4 F.3d 1038, 1043 (2d Cir. 1993).
These factors are the length of the detention, the extent of the prosecutor’s
responsibility for delay of the trial, and the strength of the evidence on which
detention is based. The district court first acknowledged that the defendant had
been in custody a long time. However, she did not find that the government’s
responsibility for the delay was significant enough to have added “considerable
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weight to [d]efendant’s claim that the duration of detention has exceeded
constitutional limits.’” See Appellant’s App., Tab A at 10 (citing United States v.
Gonzales-Claudio , 806 F.2d 334, 342-43 (2d Cir. 1986)). Moreover, the district
court correctly noted that the defendant could not rely upon his own extensive
motion practice to bolster the due process argument. See United States v.
Infelise, 934 F.2d 103, 104 (7th Cir. 1991). Finally, the court determined that
looking at the evidence on which the detention is based, the flight risk in
particular “supports the determination that [defendant’s] lengthy detention does
not violate due process.” This conclusion was supported by her concern that even
with strict release conditions, because of the seriousness of the charges and
penalties, defendant would flee. See id.We have noted that “the Supreme Court has not articulated a clear test for
determining when pretrial confinement of an accused is permissible under the
Due Process Clause.” See United States v. Deters , ___ F.3d ___, No. 97-3334,
1998 WL 213675 at *7 (10th Cir. May 1, 1998). However, the government may
detain a person suspected of committing a crime before a formal adjudication of
guilt based on its “substantial interest in ensuring that persons accused of crimes
are available for trials and, ultimately, for service of their sentences, or that
confinement of such persons pending trial is a legitimate means of furthering that
interest.” See Bell v. Wolfish , 441 U.S. 520 534 (1979); United States v. Salerno ,
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481 U.S. 739, 749 (1987) (acknowledging holding in Bell v. Wolfish that “an
arrestee may be incarcerated until trial if he presents a risk of flight”). Although
each case turns on its own facts and circumstances, we note that this court has
upheld pretrial incarceration of up to thirty-four months, albeit in a disposition
that is not binding precedent, see 10th Cir. R. 36.3 (current policy on citation of
unpublished dispositions). See United States v. Peters , 28 F.3d 114 (table),
No. 94-2107, 1994 WL 325419 (10th Cir. July 7, 1994), cert. denied , 513 U.S.
1006 (1994).
In sum, the district court balanced the competing interests and weighed the
release conditions proposed by defendant before concluding no conditions would
adequately ensure defendant’s presence at trial. We have reviewed the record and
arguments presented by the parties; defendant is not entitled to pretrial release.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED. Defendant-appellant’s motion to strike portions
of Plaintiff-appellee’s memorandum brief is DENIED.
ENTERED FOR THE COURT
PER CURIAM
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