UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
UNITED STATES OF AMERICA, ) CRIMINALACTION NO.
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Plaintiff, ) 4:05-CR-96
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v. )
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ALEXANDER YYY (10), )
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Defendant. )
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MOTION TO REVOKE DETENTION ORDER
Defendant,Alexander YYY, hereby moves this Court to revoke the detention order entered bythe Honorable Magistrate Judge Don Bush in the above referenced matter. In support of this motion, Mr. YYY sets forth the following facts andargument.
I. BACKGROUND
Alexander YYY is charged with conspiracyto distribute controlled substances, in violation of 21 U.S.C. ¤ 846. He and his co-defendant wife, DeniseYYY, were arrested in the Northern District of Texas. Significantly, after conducting a thorough backgroundinvestigation, the United States Pretrial Office for the Eastern District ofTexas recommended that Mr. YYY be released pending trial.
Atthe detention hearing, Mr. YYYÕ friends and family packed the courtroom. The Court heard testimony regarding hisextensive family ties in the North Texas area. Likewise, the Court heard testimony from two church memberswho, at Mr. YYYÕ request, had began counseling him in order that he could getout of any drug lifestyle, prior to his arrest on the instant charge. Mr. YYYÕ prior criminal history was limited to two, smallmisdemeanors (one being driving with a suspended license). Finally, it was learned that Mr. YYYmade a complete confession upon his arrest further emphasizing his desire toleave the lifestyle and take responsibility for his actions.
MagistrateJudge Bush had expressed concern at the detention hearing that guns were foundin a closet in the room of Mr. YYYÕs daughter when the home was searched. Nevertheless, the home was registeredin his wifeÕs name and Magistrate Judge Bush did release Mr. YYYÕ wife. Moreover, there was unrebuttedtestimony that the daughter did not use this room.
II. THE LAW
This Court must review the MagistrateJudge's detention order promptly and under a de novo standard of review. See 18 U.S.C. ¤ 3145(b); United States v.Fortna, 769 F.2d 243, 249(5th Cir. 1985).
Pretrialrelease should only be denied for "the strongest of reasons." Truong Dinh Hung v. United States, 439 U.S. 1326, 1329 (1978) (citationomitted). Indeed, it is wellunderstood that, when Congress enacted the Bail Reform Act, it retained thepreference for the release of most defendants prior to trial. See United States v. Byrd, 969 F.2d 106 , 109 (5th Cir. 1992)("There can be no doubt that this Act clearly favorsnon-detention."). Given thatfact, the provisions of the Bail Reform Act should be narrowly construed infavor of release. See,e.g.,United States v. Singleton,182 F.3d 7, 23 (D.C. Cir. 1999); United States v. Hinote, 789 f.2d 1490, 1941 (11th Cir. 1986) (Itis required Òthat we strictly construe provisions of the Bail Reform Act of1984). Cf. Williams v. United States, 458 U.S. 279, 290 (1982) (Criminalstatutes should be narrowly construed in favor of the defendant).
Mr.YYY concedes that a presumption of detention applies in this case. See 18 U.S.C. ¤ 3142(e), therefore, he wasrequired to present ÒsomeÓ credible evidence to overcome the presumption. Fortna, 769 F.2d at 251. Magistrate Judge Bush determined that Mr. YYY had not overcome thepresumption. Nevertheless, given theFifth CircuitÕs holding in United States v. Jackson, 845 F.2d 1262, 1266 (5th Cir. 1988),Magistrate Judge BushÕs conclusion is clearly incorrect. In Jackson, the Fifth Circuit concluded that Òwhere [a] defendant has presentedconsiderable evidence of his longstanding ties to the locality in which hefaces trial...the presumption contained in ¤ 3142(e) has been rebutted.Ó Id. It is simplyimpossible to reconcile the overwhelming community support that Mr. YYYdemonstrated at the detention hearing with the conclusion that he failed torebut the presumption under Jackson.[1]
Thepresumption having been overcome, it became the burden of the government toprove by a preponderance of the evidence that Mr. YYY was a flight risk or byclear and convincing evidence that he was a danger to the community. 18 U.S.C. ¤¤ 3142(e)(f). Likewise, the burden was on thegovernment to show that there are no conditions or combination of conditionswhich could be set that set that would Òreasonably assureÓ Mr. YYYÕ appearanceor the safety of the community. SeeUnited States v. Fortna,769 F.2d 243, 250 (5th Cir. 1985) (Ò[T]he standard is reasonably assure appearance, not ÔguaranteeÕ appearance,and that detention can be ordered on this ground only if Ôno condition orcombination of conditions will reasonably assure the appearance.Õ); UnitedStates v. Orta, 760 F.2d887, 891-92 (8th Cir. 1985) (en banc) (ÒIn this case, the district court erred in interpreting theÔreasonably assureÕ standard set forth in the statute as a requirement thatrelease conditions ÔguaranteeÕ community safety and the defendant'sappearance.Ó).
Herethere was no indication whatsoever that Mr. YYY would flea. First, he has cooperated with thegovernment and admitted guilt as well as the extent of his guilt when questioned upon his arrest.[2] Second, his wife and children as well as his wifeÕs family lives in theDallas area. Third, Mr. YYY hasbeen a life long resident of the Dallas area. Fourth, Mr. YYY had no problems appearing for court inconnection with the two misdemeanor charges on his criminal record. Fifth, he has no passport. Sixth, while he voluntarilydisclosed the existenceof a sister in Monterey, Mexico, there was nothing to indicate that he hadcontact with that sister much less that he has visited her.[3]
Asset forth above, it appears that Magistrate Judge considered the Òweight of theevidenceÓ and the fact that it was alleged that Mr. YYY kept guns in the homewhere his young daughter resided to conclude that the government proved byÒclear and convincingÓ evidence that he was a danger to his daughter therebyjustifying his pretrial detention. First, Mr. YYY notes that the Òwight of the evidence factorÓ is theleast important factor that the Court can consider because the Court cannotmake a pretrial determination of guilt. See United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990) (ÒThe weight of the evidenceagainst the defendant is a factor to be considered but it is Ôthe leastimportantÕ of the various factors.Ó (citation omitted)); United States v.Montamedi, 767 F.2d 1403,1408 (9th Cir. 1985) (same). Second, the simple fact that a parent keeps firearms in a home wouldmake a significant number of Texans a danger to their children Third, he has no criminal history savetwo misdemeanors occurring on the same date. Finally, this basis for detention would also apply to Mr.YYYÕ wife, Denise Jimenez, nevertheless, Magistrate Judge Bush found that therewere conditionsof release that could be set for Ms. Jimenez. Indeed, Mr. YYY was similarly situated with his wife, and,unfortunately, one can reasonably be concluded that, ultimately, Magistrate Judge Bush detained Mr. YYYbased upon his gender. It isaxiomatic that a person cannot be detained for unconstitutional reasons. Cf. J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994).
III. CONCLUSION
This Court should revoke Magistrate JudgeBushÕs detention order because it ignores that Fifth CircuitÕs holding in Jackson and is based upon unconstitutionalconsiderations. Likewise,this Court can set conditions, however onerous the Court believes they need tobe,[4] that would reasonably assure Mr. YYY'appearance in Court and the safety of the community.[5]
Respectfullysubmitted,
F.Clinton Broden
Tx.Bar 24001495
Broden& Mickelsen
2707Hibernia
Dallas,Texas 75204
214-720-9552
214-720-9594(facsimile)
Attorneyfor Defendant
AlexanderYYY
CERTIFICATE OF SERVICE
I,F. Clinton Broden, certify that on July 26, 2005, I caused the foregoingdocument to be served by electronic means, on all counsel of record
_________________________________
F.Clinton Broden