United States v. Ernesto Moreno ( 2017 )

Case: 16-30785 Document: 00514004039 Page: 1 Date Filed: 05/23/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30785
Fifth Circuit
FILED
May 23, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ERNESTO MORENO,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before SMITH, PRADO, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ernesto Moreno was caught violating the conditions of pretrial release
set by a federal magistrate judge (“MJ”) in California. A federal MJ in Louisi-
ana held a hearing and ordered that Moreno be detained. The district court
a quo affirmed. Moreno challenges the detention order. Finding no error, we
affirm.
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No. 16-30785
I.
Moreno is a lifelong resident of California. In October 2015, he was
indicted by a federal grand jury in the Eastern District of Louisiana (the “East-
ern District”) for conspiring to distribute and possess with intent to distribute
methamphetamine. A warrant was issued in the Eastern District for his
arrest. In March 2016, he was arrested in the Central District of California
(“CDCA”). An MJ in CDCA denied the government’s motion for detention and
released Moreno on a $50,000 bond. The conditions of pretrial release required
Moreno to avoid illegal drugs and submit to drug testing.
In April 2016, Moreno tested positive for marihuana, cocaine, and meth-
amphetamine and admitted to using them at a party. CDCA pretrial services
increased the frequency of Moreno’s drug testing and placed him in outpatient
drug counseling.
The same day that the drug test results came back, a police officer in San
Fernando, California, responding to reports of a vehicle break-in, found Mor-
eno sitting in the driver’s seat of a luxury vehicle, apparently intoxicated, and
bleeding from his hand. There was blood-stained cash on the passenger’s seat
and a clear plastic bag filled with what appeared to be methamphetamine.
Moreno’s brother, who also seemed intoxicated, was in the back seat.
The officer arrested Moreno. A search of the car uncovered a backpack
full of cash and two bottles containing Promethazine with Codeine (a controlled
substance). The officer discovered eighteen prescription Xanax pills in Mor-
eno’s pocket. The substance in the clear plastic bag tested positive for
methamphetamine.
Moreno was charged with three California drug crimes and released on
a state bond. The government moved in the CDCA to revoke Moreno’s bail in
the Eastern District case. The MJ in CDCA issued an arrest warrant for
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Moreno.
On May 2, before the arrest warrant could be executed, Moreno appeared
for a scheduled hearing in the Eastern District, where an MJ accepted his plea
of not guilty and heard arguments about whether to detain him. The govern-
ment noted that since being released from federal custody, Moreno had used
drugs and had been charged with drug offenses. The government claimed that
detention was necessary because Moreno’s lack of ties to the Eastern District
made him a flight risk, and his alleged drug-selling made him a danger to the
community. Moreno blamed the California drug arrest on his brother, ex-
plained that he had relinquished his passport, noted that he had shown up at
the hearing, and suggested that he be placed in an inpatient drug treatment
program. The Eastern District MJ determined that there were no conditions
or combination of conditions that would reasonably assure Moreno’s appear-
ance in court or the safety of the community. She ordered that Moreno be held
without bail pending trial.
On appeal to the district court, Moreno disputed the government’s
portrayal of the circumstances surrounding his arrest in San Fernando: He
denied breaking into the car and noted that he had a prescription for Xanax
and that his brother had claimed ownership of the other drugs found in the
car. He also disputed the government’s claim that he was a flight risk and a
danger to the community. He noted that he had appeared at the May 2 hearing
in the Eastern District, had deep ties to California (where he would reside
while on bail), had never been convicted of a felony, and had never been found
to be in possession of a firearm. On June 24, the district judge in the Eastern
District affirmed the MJ’s detention order and adopted her report and
recommendation.
On appeal to this court, Moreno raises four issues. First, he challenges
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the detention order on the merits. Second, he claims that the district court
violated its own local rules. Third, he claims that the district judge violated
ethical rules by having his law clerk send out an email about a filing deadline.
Finally, he claims that his constitutional rights were violated when he was
denied an evidentiary hearing in the CDCA.
II.
Absent an error of law, we review a pretrial detention order under “a
deferential standard of review that we equate to the abuse-of-discretion stan-
dard.” United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992). The question
is “whether the evidence as a whole supports the conclusions of the proceedings
below.” Id. (citation omitted).
A “judicial officer shall” revoke bail if he (1) finds that there is either
(a) “probable cause to believe that the defendant has committed” a crime or
(b) “clear and convincing evidence that the person has violated any other con-
dition of release” and (2) finds that either (a) “based on the factors set forth in
[18 U.S.C. § 3142(g)], there is no condition or combination of conditions of
release that will assure that the person will not flee or pose a danger to the
safety of any other person or the community” or (b) “the person is unlikely to
abide by any condition or combinations of conditions of release.” 18 U.S.C.
§ 3148(b). The factors in § 3142(g) include the nature and circumstances of
the offense charged; the weight of the evidence; the defendant’s physical and
mental condition; his employment; his ties to the community; his criminal his-
tory; and his record of appearing at court proceedings. § 3142(g). If there is
probable cause to believe that the defendant has committed a felony while on
release, a rebuttable presumption arises that no condition or combination of
conditions will assure that he will not pose a danger to another person or the
community. § 3148(b)(2)(B).
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The evidence as a whole supports the detention order. Moreno was on
pretrial release for about a month, during which he tested positive for drugs
and was arrested for drug-related crimes. He has four drug convictions, no ties
to the Eastern District, and no verifiable legitimate employment. The facts
surrounding his arrest in San Fernando establish probable cause that he com-
mitted a felony while on release, creating a rebuttable presumption that he is
a danger to the community.
Moreno points to his record of showing up for court as evidence that he
is not a flight risk. But there is considerable indication that he is a danger to
the community even if not a flight risk. The district court did not abuse its
discretion by ordering detention.
III.
Moreno claims that the district court violated Eastern District of Louisi-
ana Local Criminal Rule 5.2, which provides in relevant part,
The criminal magistrate judge shall . . . [s]et conditions of bail and
order release or detention of arrested persons in accordance with
18 USC 3141, except that the magistrate judge who initially sets the
conditions of release shall also conduct all subsequent proceedings
related to detention or release of the defendant.
Moreno reads this provision to mean that the Eastern District MJ should have
deferred to the MJ in the CDCA, who set the initial conditions of release in this
case. The government counters that Rule 5.2 only governs the assignment of
cases within the Eastern District and does not require cases to be transferred
to other districts.
Generally, a district court’s application of its local rules is reviewed for
abuse of discretion. 1 But because Moreno did not raise this issue in the district
1 See United States v. Hale, 685 F.3d 522, 532 (5th Cir. 2012) (per curiam) (citing
Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002)); see also in re Adams,
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court, it is reviewed only for plain error. See United States v. Cordova-Soto,
804 F.3d 714, 722 (5th Cir. 2015). To demonstrate plain error, “an appellant
must show (1) a forfeited error, (2) that is clear or obvious, and (3) that affects
[the appellant’s] substantial rights.” Id. (citing Puckett v. United States,
556 U.S. 129, 135 (2009)). Even if those prongs of the test are satisfied, rever-
sal is warranted “only if the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings” and this court chooses to exercise its
discretion to correct the error. Id. (citation omitted).
The district court’s interpretation of Rule 5.2 did not constitute plain
error. The government’s theory that Rule 5.2 applies only locally makes sense
given that it is a local rule, and Moreno has presented no authority to the con-
trary. Even if the district court erred, that error was neither clear nor obvious.
IV.
On June 6, 2016, one of the district judge’s law clerks sent an email to
both parties, asking whether they believed oral argument was needed. The
email also noted that the government had not filed an opposition to Moreno’s
appeal of the Eastern District MJ’s order. The filing deadline had been June 2,
but the email indicated that a late filing would be accepted so long as it was
filed “ASAP.” Moreno claims that by sending that email, the district court
showed “deference” to the government, prejudicing him. Moreno believes that
if the email had not been sent, the government would not have filed an opposi-
tion to the appeal, and Moreno would have received the relief he sought.
This issue is foreclosed, because the email is not in the record. Moreno
never moved to supplement the record with the email; instead, he just included
734 F.2d 1094, 1102 (5th Cir. 1984) (“Courts have broad discretion in interpreting and apply-
ing their own local rules adopted to promote efficiency in the court.”).
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it as an appendix to his appellate brief. “It is appellant’s responsibility to order
parts of the record which he contends contain error and his failure to do so
prevents us from reviewing this assignment of error.” 2
V.
Moreno claims that he had a constitutional right to an evidentiary hear-
ing in the CDCA. He says that by denying that, the district court violated his
“rights to due process and equal protection under the Fifth and Fourteenth
Amendments.” But he does not sufficiently explain his reasoning or cite any
caselaw for support. This argument is waived for lack of adequate briefing. 3
The detention order is AFFIRMED.
2United States v. Narvaez, 38 F.3d 162, 167 (5th Cir. 1994); see also FED. R. APP. P.
10(e). We intend no indication that, if the email were in the record, Moreno’s point would
have merit.
3See United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989) (stating that a party
waives an argument that is inadequately briefed).
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