United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER United States District Judge.
This
matter comes before the Court on defendant Laura Lynn
Jaramillo's Motion for Revocation or Amendment of New
Mexico Magistrate Judge's Order of Detention [Docket No.
117] of Magistrate Judge Kevin R. Sweazea's Order of
Detention Pending Trial [Docket No. 70 at 24], entered on
October 23, 2018 in the District of New Mexico, where the
defendant was arrested pursuant to a District of Colorado
arrest warrant. The United States has filed a response
[Docket No. 127].
Defendant
seeks revocation of the magistrate judge's detention
order under 18 U.S.C. § 3145(b) and requests a de novo
hearing. Docket No. 117 at 9.
Requirements
for Detention Under the Bail Reform Act
Under
the Bail Reform Act, a defendant may be detained pending
trial only if a judicial officer finds “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.” 18 U.S.C. §
3142(e). The government bears the burden of proof at a
detention hearing. Id. The government must prove
risk of flight by a preponderance of the evidence and must
prove dangerousness to any person or to the community by
clear and convincing evidence. 18 U.S.C. § 3142(f).
In
deciding whether there are conditions of release that would
assure the appearance of the defendant and the safety of the
community, the magistrate judge must consider the following
factors:
(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence, a
violation of section 1591, a Federal crime of terrorism, or
involves a minor victim or a controlled substance, firearm,
explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including
--
(A) the person'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
(B) whether, at the time of the current offense or arrest,
the person 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; and
(4) the nature and seriousness of the danger to any person or
the community that would be posed by the person's
release. . . .
Count
One of the indictment charges the defendant, among others,
with a conspiracy to distribute more than five kilograms of
cocaine. This count carries a ten-year mandatory minimum and
a maximum sentence of life imprisonment. Therefore, pursuant
to 18 U.S.C. § 3142(3)(3)(A), Count One has a rebuttable
presumption of pretrial detention. In order to overcome this
presumption, a defendant must produce some evidence to rebut
the presumption. United States v. Stricklin, 932
F.2d 1353, 1355 (10th Cir. 1991). Although a defendant may
present such evidence, the Court may nevertheless take the
presumption into account as a factor in determining whether
detention is appropriate. The defendant is also charged with
three other counts (use of a communications device in
connection with drug trafficking; interstate travel in aid of
racketeering; and possession with intent to distribute more
than five kilograms of cocaine).
The
Order of Detention [Docket No. 70 at 24-26] found that the
rebuttable presumption of detention applied and concluded
that the government proved by clear and convincing evidence
that no condition or combination of conditions of release
would reasonably assure the safety of the community and
proved by a preponderance of the evidence that no condition
or combination of conditions would reasonably assure the
defendant's appearance. The magistrate judge additionally
found that (a) the weight of the evidence against the
defendant was strong; (b) she was subject to lengthy
detention if convicted; (c) ...