United States v. Garcia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
)
v. ) Criminal No. 18-cr-132 (TSC/GMH)
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DIONISIO GARCIA, )
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Defendant. )
)
DETENTION MEMORANDUM
This matter comes before the Court upon the application of the United States that Defend-
ant, Dionisio Garcia, be detained pending trial pursuant to 18 U.S.C. § 3142. Defendant is charged
by indictment with one count of conspiracy to import 500 grams or more of cocaine from a foreign
country in violation of 21 U.S.C. § 963. The Court held a detention hearing on May 9, 2018. At
the conclusion of that hearing and upon consideration of the proffers and arguments of counsel
and the entire record herein, the Court ordered Defendant held without bond. This memorandum
is submitted in compliance with the statutory obligation that “the judicial officer shall . . . include
written findings of fact and a written statement of the reasons for the detention.” 18 U.S.C.
§ 3142(i)(1).
FINDINGS OF FACT
At the detention hearing, the United States proceeded by proffer based on the indictment.
The defense offered no contrary evidence on the merits of the offense, but did provide, also by
proffer, additional information about the history and characteristics of Defendant. Accordingly,
the Court makes the following findings of fact.
A. The Charged Offense
On April 28, 2018, Customs and Border Patrol agents assigned to the Cincinnati facility of
international shipping company DHL targeted a package sent from Colon, Panama, and addressed
to “Dylan Boyce” at an apartment on Kansas Avenue in the northwestern quandrant of the District
of Columbia. When agents opened the package, which, according to the shipping manifest,
contained documents, they discovered approximately 962 grams of a white powdery substance
that field-tested positive for cocaine.
Thereafter, on the morning of May 2, 2018, officers from Homeland Security
Investigations, working with other law enforcement, conducted a controlled delivery of the
package (from which the drugs had been replaced by a similar sham product) to the Kansas Avenue
address. When no one answered the door at either of the apartments at the address, an undercover
officer placed on the door of the apartment to which the package had been addressed a DHL tag
indicating an attempted delivery and including a contact number. Later that day, the undercover
officer received a call about the package from a person sounding like a Hispanic male, and the
officer arranged to redeliver the package to the Kansas Avenue address. When he returned to that
residence, Defendant was waiting for him in front, signed for the package using the name “Dilan,”
and took the package into the apartment to which it had been addressed. Approximately one
minute later, officers observed Defendant leave the apartment through the back door, place the
package into the trunk of a burgundy Honda Accord, and return to the apartment.
At approximately 3:30 p.m. that same day, law enforcement executed a search warrant at
the apartment. After waiving his Miranda rights, Defendant admitted that he had received the
package for another person who was supposed to pick the package up that evening. Defendant
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was to receive $500 for his help. Defendant admitted that he expected the package would contain
something illegal, perhaps Ecstasy, and also that he had previously accepted a similar package for
the same person and received $300 as payment. In a search incident to Defendant’s arrest, law
enforcement found $1,185 in his pocket.
B. Defendant’s Characteristics and Criminal History
Defendant has no prior criminal history. He is a legal resident of the United States who
has lived in the D.C.-area for twenty-one years. He resides with his girlfriend of eight years in
Maryland and has two sons in the area. Although he has not had steady employment for the past
five months, Defendant asserts that prior to that he was gainfully employed for approximately
twenty-one years, most recently serving as an auto mechanic at a single establishment for fifteen
years.
LEGAL STANDARD
The Bail Reform Act of 1984, 18 U.S.C. § 3142 et seq., provides, in pertinent part, that if
a judicial officer finds by clear and convincing evidence 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, such judicial officer shall order the detention of the [defendant]
before trial.” 18 U.S.C. § 3142(e). Thus, even if a defendant is not considered a flight risk, his or
her danger to the community alone is sufficient reason to order pretrial detention, and vice versa.
United States v. Salerno, 481 U.S. 739, 755 (1987); United States v. Perry, 788 F.2d 100, 113 (3d
Cir. 1986); United States v. Sazenski, 806 F.2d 846, 848 (8th Cir. 1986). Where the judicial
officer’s justification for detention is premised upon the safety of the community, the decision
must be supported by “clear and convincing evidence.” 18 U.S.C. § 3142(f)(2). Where the
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justification for detention is risk of flight, the decision must be supported by a preponderance of
the evidence. See United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987).
Section 3142 imposes a rebuttable presumption of dangerousness or flight risk on certain
defendants based on the crimes with which they are charged, their prior convictions, or similar
considerations. See 18 U.S.C. § 3142(e)(2), (3). For purposes of determining whether a rebuttable
presumption is triggered, “[a] grand jury indictment, by itself, establishes probable cause to believe
that a defendant committed the crime with which he is charged.” United States v. Stone, 608 F.3d
939, 945 (6th Cir. 2010); United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (“[T]he
indictment alone would have been enough to raise the rebuttable presumption that no condition
would reasonably assure the safety of the community.”). Here, Defendant was indicted under 21
U.S.C. § 963 for conspiracy to distribute at least 500 grams of cocaine, an offense for which the
maximum term of imprisonment is more than ten years. This offense triggers the rebuttable
presumption of section 3142(e)(3)(A), which provides that “[s]ubject to rebuttal by the person, it
shall be presumed that no condition or combination of conditions will reasonably assure [(1)] the
appearance of the person as required and [(2)] the safety of the community if the judicial officer
finds that there is probable cause to believe that the person 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).
Once the rebuttable presumption is triggered, it “operate[s] at a minimum to impose a
burden of production on the defendant to offer some credible evidence contrary to the statutory
presumption.” See United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985). As this Court
has emphasized, “[w]hile the burden of production may not be heavy, the applicable cases all speak
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in terms of a defendant’s obligation to introduce ‘evidence.’” United States v. Lee, 195 F. Supp.
3d 120, 125 (D.D.C. July 1, 2016) (citations omitted). Thus, the defendant must offer not mere
speculation, but “at least some evidence,” or basis to conclude that the presumption has been
rebutted in his or her case. Stone, 608 F.3d at 945–46; Alatishe, 768 F.2d at 371; see also United
States v. Taylor, 289 F. Supp. 3d 55, 63 (D.D.C. 2018). Specifically, a defendant “should ‘present
all the special features of his case’ that take it outside ‘the congressional paradigm’” giving rise to
the presumption. Stone, 608 F.3d at 946 (quoting United States v. Jessup, 757 F.2d 378, 387 (1st
Cir. 1985)); see also United States v. Portes, 786 F.2d 758, 764 (7th Cir. 1985) (presumptions in
section 3142(e) “are ‘rebutted’ when the defendant meets a ‘burden of production’ by coming
forward with some evidence that he will not flee or endanger the community if released”).
That said, the burden of persuasion on the issue of detention remains, as always, with the
government. United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). But even where the
defendant offers evidence to rebut the presumption, the presumption is not erased. It is “not a
‘bursting bubble’ that becomes devoid of all force once a defendant has met his burden of
production.” Taylor, 2018 WL 272748, at *4 (quoting Jessup, 757 F.2d at 382). Rather, even
after the defendant carries his burden of production, the presumption “remains in the case as an
evidentiary finding militating against release, to be weighted along with other evidence relevant
to factors listed in § 3142(g).” United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986);
Taylor, 289 F. Supp. 3d at 63 (“[T]he judicial officer must ‘keep in mind the fact that Congress
has found that’ those charged with the specified offenses are likely to pose a danger to the
community.” (quoting Jessup, 757 F.2d at 384)); United States v. Ali, 793 F. Supp. 2d 386, 391
(D.D.C. 2011).
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ANALYSIS
A. Application of the Rebuttable Presumption
Defendant concedes that the rebuttable presumption in favor of pretrial detention pursuant
to 18 U.S.C. § 3142(e)(3)(A) applies here, but stresses that his strong ties to the community and
his non-existent criminal history are sufficient to meet his burden of production to rebut it.
Specifically, Defendant argues that he has been a legal resident of the D.C.-area for twenty-one
years without acquiring a criminal record. He notes that the current charges reflect a single
instance of receiving a package containing drugs, and there are no allegations of violence or
possession of weapons. He has ties to the community, evidenced by his living situation, his two
sons in the area, and the attendance of approximately fifteen friends at the detention hearing.
Although he has not had steady employment for the past five months, Defendant asserts that prior
to that he was gainfully employed for approximately twenty-one years, most recently serving as
an auto mechanic at a single establishment for fifteen years. In lieu of pretrial detention, Defendant
asks the Court to release him on conditions, including electronic monitoring and home detention.
This is a close case. Having heard the parties’ proffers, the Court finds that Defendant
has rebutted the presumption that he is a flight risk. Defendant is a legal resident who has lived
in the area for more than two decades. He has ties to the community, including a girlfriend and
two children, and has a history of gainful employment. However, Defendant has failed to produce
at the hearing “some credible evidence contrary to the statutory presumption” of his dangerousness
were he to be released. Alatishe, 768 F.2d at 371.
Congress has determined that individuals who, like Defendant, have been charged with
drug offenses carrying a maximum term of imprisonment of ten years or more presumptively pose
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a danger to the community even if they do not have a criminal history. See United States v. Bess,
678 F. Supp. 929, 934 (D.D.C. 1988) (explaining that the presumption “represents Congress’s
general factual view about . . . the special risks of danger to the community presented by
defendants who commit the crimes to which it attaches”). Moreover, the weight of the evidence
is strong that Defendant conspired with another to import a significant amount of cocaine for
distribution. He was discovered with the package containing almost one kilogram of cocaine and
admitted to having engaged in a similar scheme on a prior occasion—although the contents of that
package are presently unknown. “The distribution of large quantities of narcotics into the
community poses a significant danger to communal safety.” United States v. Holroyd, No. CR 17-
234-2 (TNM), 2018 WL 294529, at *3 (D.D.C. Jan. 4, 2018). Given the manner in which
Defendant received the drugs—by accepting a package mailed from Panama to a D.C.-area
address—it would be difficult to fashion conditions of release that would prevent him from
committing further similar offenses. Finally, the probative value of Defendant’s evidence
concerning his ties to the community and his previously law-abiding life is limited because “this
evidence would equally tend to suggest that Defendant would never have committed the crime
with which he is now charged.” United States v. Bess, 678 F. Supp. 929, 935 (D.D.C. 1988) (“The
history and characteristics of Defendant—his family and community ties, his educational and
employment record, and his lack of prior convictions as an adult—did not deter him from
committing armed robbery in the first instance . . . .”).
B. Application of the Section 3142(g) Factors
Had Defendant fully rebutted the presumption in favor of his detention, and the Court were
to consider the Bail Reform Act’s four section 3142(g) factors, it would again be a close call, but
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the conclusion would ultimately be the same: Defendant should be held without bond pending
trial. The four factors that must be considered in making a bond determination are: (1) the nature
and circumstances of the offense; (2) the weight of the evidence against the defendant; (3) the
history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any
person or the community that would be posed by the defendant’s release. 18 U.S.C. § 3142(g).
Further, where, as here, a rebuttable presumption applies, it “remains in the case as an evidentiary
finding militating against release, to be weighted along with other evidence relevant to factors
listed in § 3142(g),” even if the defendant has met his or her burden of production of offering some
credible evidence to the contrary. Dominguez, 783 F.2d at 707; Taylor, 289 F. Supp. 3d at 63; Ali,
793 F. Supp. 2d at 391.
1. Nature and Circumstances of the Charged Offense
The first factor, the nature and circumstances of the charged offense, favors detention. This
factor asks the Court to consider “the nature and circumstances of the offense charged” as a general
matter, but points especially to instances where “the offense is a crime of violence . . . or involves
a controlled substance, firearm, explosive, or destructive device.” 18 U.S.C. § 3142(g)(1). Here,
the indictment and the government’s proffer establish probable cause to believe Defendant
engaged in a drug trafficking offense involving cocaine in an amount that the grand jury found
was consistent with intent to distribute the drug. Defendant’s own statements indicate he expected
that the package he received would include narcotics and that he had previously agreed to accept
a package likely to contain narcotics for payment. Defendant was also found with over $1,000
cash in his pocket, notwithstanding the fact that he is currently unemployed. That is, the evidence
indicates that Defendant was no unwilling dupe; he was a knowing participant in a drug conspiracy.
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2. The Weight of the Evidence
The weight of the evidence against Defendant is strong and also favors detention. As
outlined above, law enforcement witnessed Defendant receive the package of drugs and put it in
the trunk of a car from which it was later recovered. And Defendant admitted he believed that the
package contained narcotics.
3. The History and Characteristics of Defendant
Section 3142(g)(3) directs the Court to consider: (1) the defendant’s 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, and record concerning appearance at court proceedings; and (2) whether, at the time of the
current offense or arrest, the defendant was on probation, on parole, or on other release pending
trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law.
18 U.S.C. § 3142(g)(3)(A)–(B).
This factor does not weigh strongly in favor of detention. As discussed above, Defendant
has no prior criminal record, has lived in the community for over two decades, and has apparently
strong ties to the community. To be sure, he has been unemployed for the past months, but his
employment record prior to that period is steady. The primary counterweight to that history is the
conduct for which he is charged, which Congress has found poses “special risks” to the
community. See Bess, 678 F. Supp. at 934 (finding that presumption “represents Congress’s
general factual view about the special flight risks and the special risks of danger to the community
presented by defendants who commit the crimes to which it attaches”). But although this factor
may not firmly indicate that Defendant should be detained, it does not compensate for the other §
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3142(g) factors, which do counsel in favor of detention.
4. The Danger to the Community
The fourth factor, the danger to the community posed by Defendant were he to be released,
also weighs in favor of detention. There is probable cause to believe that defendant received nearly
one kilogram of cocaine as part of a conspiracy to distribute the drug. The danger to the
community posed by this conduct is discussed above and requires no further explanation here.
For these reasons, the Court does not have confidence that, if released, Defendant would
not continue to engage in criminal activity. The undersigned therefore finds that there is no
condition or combination of conditions that would keep the community safe if Defendant were
released.
CONCLUSION
Based on the consideration of all the evidence, the factors set forth in section 3142(g), and
all lesser restrictive alternatives to pretrial detention, the Court finds by clear and convincing
evidence that no condition or combination of conditions exist that would reasonably assure the
safety of any other person or of the community if Defendant was released. Therefore, the
government’s motion for pretrial detention is GRANTED.
DIRECTIONS REGARDING DETENTION
Defendant is ORDERED remanded to the custody of the Attorney General or to the
Attorney General’s designated representative for confinement in a corrections facility separate, to
the extent practicable, from persons awaiting or serving sentences or being held in custody pending
appeal. Defendant must be afforded reasonable opportunity for private consultation with defense
counsel. On order of a court of the United States or on request of an attorney for the government,
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the person in charge of the corrections facility must deliver Defendant to a United States Marshal
for the purpose of an appearance in connection with a court proceeding.
G. Michael Harvey
2018.05.10 17:22:04
Date: May 10, 2018 -04'00'
___________________________________
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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