United States v. Fernandez Velez

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
V.
CRIMINAL NO. 06-232-2
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APR 20 2099
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LUZ ESTELLA FERNANDEZ VELEZ
Defendant.
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MEMORANDUM & ORDER
Luz Estella Fernandez Velez has been charged in a multi-count indictment with
conspiracy to distribute and distribution of five kilograms or more of cocaine in violation of 21
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 16, 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. § 3l42(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 govemment made the following factual proffer: During
and around 2005 , defendant Luz Estella Femandez Velez was the financial leader of a drug
organization operating on the Northem Coast of Colombia. The organization manufactured and
distributed large amounts of cocaine. Fernandez Velez was responsible for negotiating the prices
for which the organization should buy and sell cocaine as well as coordinating the payment of
taxes to the AUC (the United Self-Defense Forces of Colombia). By utilizing a wiretap, the
government obtained phone calls in which Fernandez Velez was heard discussing the financial
aspects of the drug organization. Investigators were also able to seize some of the cocaine that
was used in the conspiracy. Additionally, the government proffered that Fernandez Velez
attempted to bribe a Colombian law enforcement following the arrest of one of her
coconspirators. The government has also proffered that Fernandez Velez has no ties to the
United States and poses a flight risk.
II. DISCUSSION
A. Legal Framework
The Bail Reform Act, 18 U.S.C. § 3141 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),(f). The government first
must establish one of the predicates: (1) 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. § 3142(g)(1)-(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 Fernandez Velez 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. 3l6, 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 she to be released.
The Court has considered the weight of the evidence and concludes that the government’s
evidence is strong. The government has phone conversations which indicate that the defendant is
guilty of the crime charged. Investigating officers have confirmed that the voice heard on the
calls is the voice of Femandez Velez. Moreover, the government has proffered that with regard
to some of the purchases, the defendant exchanged cocaine for American dollars, indicating that
she was aware that the cocaine she was distributing would be imported into the United States.
The record does not reflect that Fernandez Velez 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.
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Chief Jud'ge Royce C. Lamberth ljate