United States v. Perez ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED sTATEs oF AMERICA, )
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v. )
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EDGAR PEREZ ) CRIMINAL No. 06-232-4
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Defendant. ) F “ L E D
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APR 2 ll 2009
\T\'\NGTON, CLERK
MEMoRANDUM & oRDER '““°¥ H“slf§lsvlll\crcouv21 U.S.C. §§ 959, 960, 963
and 18 U.S.C. § 2. Now before the Court is the government’s oral motion for pre-trial detention.
This Court conducted a hearing on the matter on April l6, 2009. Upon consideration of the oral
motion, and the arguments and proffer of evidence introduced in the hearing, the Court finds that
no condition or combination of conditions will reasonably assure the appearance of the defendant
or the safety of the community if the defendant were to be released pending trial. See 18 U.S.C.
§ 3 l42(e). Accordingly, the government’s motion is GRANTED and the Court ORDERS that
the defendant be detained without bond pending trial.
I. THE GOVERNMENT’S PROFFER
At the April l6, 2009 hearing, the government made the following factual proffer: During
and around 2005, defendant Edgar Perez was an administrator in charge of overseeing cocaine
manufacturing plants along the northern coast of Colombia. By utilizing a wiretap, the
government obtained phone calls in which Perez was heard discussing the operations at the
cocaine plants with various coconspirators. In some of the conversations, Perez discusses how
the destruction of some of the manufacturing plants will affect the conspiracy. Investigators were
also able to seize some of the cocaine that was used in the conspiracy, including one seizure of
120 kilograms of cocaine. The government has also proffered that Perez has no ties to the United
States and poses a flight risk.
II. DISCUSSION
A. Legal Framew0rk
The Bail Reforrn Act, 18 U.S.C. § 3l4l et seq., dictates that a defendant may be detained
pending trial where the government carries its burden of establishing "that no condition or
combination of conditions will reasonably assure the appearance of the person as required and
the safety of any other person and the community." Ia’. at § 3 l42(e),(t). The government first
must establish one of the predicates: (l) that, beyond a preponderance of the evidence, defendant
poses a risk of flight, United States v. Xulam, 84 F.3d 441, 443 (D.C. Cir. 1996); United States v.
Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987); or (2) that, by clear and convincing evidence,
defendant has been shown to pose a risk to the safety of any person or the community. 18 U.S.C.
§ 3 l42(f). The court must then determine that the same evidence leads to the conclusion that no
condition or conditions of release will reasonably protect against the risk that has been found.
The court should consider the nature and circumstances of the offense charged, the weight of the
evidence, the history and characteristics of the person, and the nature and seriousness of the
danger to the community if the person were released. 18 U.S.C. § 3 l42(g)(l)-(4).
B. Flight Risk and Danger to the Community
The Court finds that the government has carried its burden of establishing, by a
preponderance of evidence, that the defendant is a risk of flight. The government has also shown
by clear and convincing evidence that Perez is a danger to the community.
The nature of the alleged crime is serious. The grand jury has returned an indictment
charging the defendant with conspiracy to distribute five kilograms or more of cocaine. A grand
jury indictment must be taken "fair upon its face" and provides probable cause to believe the
defendant actually committed the acts constituting the offense. United States v. Mosuro, 648 F.
Supp. 316, 318 (D.D.C. 1986).
The Court has also considered the defendant’s history and characteristics. The defendant
has no prior criminal history, but has no ties to the United States. Therefore, given the
seriousness of the alleged offense and the defendant’s international ties, the Court cannot be
reasonably assured that the defendant would appear in court were he to be released.
The Court has considered the weight of the evidence and concludes that the govemment’s
evidence is strong. The government has numerous phone conversations that indicate the
defendant is guilty of the crime charged, investigating officers have confirmed that the voice
heard on the calls is the voice of Perez.
The record does not reflect that Perez has a history of drug or alcohol abuse, has a
criminal record, or was on probation at the time of the offense.
III. CONCLUSION
After consideration of the proffered evidence and the factors set forth in 18 U.S.C. §
3142(g), the Court finds that detention of the defendant is appropriate in this case pending trial.
The Court also finds that the defendant’s release, under any conditions, would pose an
unreasonable danger to the community. Accordingly, it is hereby
ORDERED that the defendant continue to be detained without bond; it is further
ORDERED that defendant shall be afforded reasonable opportunity for private
consultation with counsel.
SO ORDERED.
t//@' 57
Chief Jlidge Royce C. Lamberth Date