UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

 

UNITED STATES OF AMERICA,                       )           CRIMINAL ACTION NO.

                                                                        )

                        Plaintiff,                                 )           4:05-CR-96

                                                                        )

v.                                                                     )

                                                                        )

ALEXANDER YYY (10),                           )

                                                                        )

                        Defendant.                             )

                                                                        )

 

MOTION TO REVOKE DETENTION ORDER

 

            Defendant, Alexander YYY, hereby moves this Court to revoke the detention order entered by the Honorable Magistrate Judge Don Bush  in the above referenced matter.  In support of this motion, Mr. YYY sets forth the following facts and argument.

I. BACKGROUND

            Alexander YYY is charged with conspiracy to distribute controlled substances, in violation of 21 U.S.C. ¤ 846.  He and his co-defendant wife, Denise YYY, were arrested in the Northern District of Texas.  Significantly, after conducting a thorough background investigation, the United States Pretrial Office for the Eastern District of Texas recommended that Mr. YYY be released pending trial.

            At the detention hearing, Mr. YYYÕ friends and family packed the courtroom.  The Court heard testimony regarding his extensive family ties in the North Texas area.  Likewise, the Court heard testimony from two church members who, at Mr. YYYÕ request, had began counseling him in order that he could get out of any drug lifestyle, prior to his arrest on the instant charge.  Mr. YYYÕ prior criminal history was limited to two, small misdemeanors (one being driving with a suspended license).  Finally, it was learned that Mr. YYY made a complete confession upon his arrest further emphasizing his desire to leave the lifestyle and take responsibility for his actions.

            Magistrate Judge Bush had expressed concern at the detention hearing that guns were found in a closet in the room of Mr. YYYÕs daughter when the home was searched.  Nevertheless, the home was registered in his wifeÕs name and Magistrate Judge Bush did release Mr. YYYÕ wife.  Moreover, there was unrebutted testimony that the daughter did not use this room.

II. THE LAW

             This Court must review the Magistrate Judge'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). 

            Pretrial release should only be denied for "the strongest of reasons."  Truong Dinh Hung v. United States, 439 U.S. 1326, 1329 (1978) (citation omitted).   Indeed, it is well understood that, when Congress enacted the Bail Reform Act, it retained the preference 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 favors non-detention.").  Given that fact, the provisions of the Bail Reform Act should be narrowly construed in favor 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) (It is required Òthat we strictly construe provisions of the Bail Reform Act of 1984).  Cf. Williams v. United States, 458 U.S. 279, 290 (1982) (Criminal statutes 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 was required 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 the presumption.  Nevertheless, given the Fifth 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 presented considerable evidence of his longstanding ties to the locality in which he faces trial...the presumption contained in ¤ 3142(e) has been rebutted.Ó  Id.  It is simply impossible to reconcile the overwhelming community support that Mr. YYY demonstrated at the detention hearing with the conclusion that he failed to rebut the presumption under Jackson.[1]

            The presumption having been overcome, it became the burden of the government to prove by a preponderance of the evidence that Mr. YYY was a flight risk or by clear and convincing evidence that he was a danger to the community.  18 U.S.C. ¤¤ 3142(e)(f).  Likewise, the burden was on the government to show that there are no conditions or combination of conditions which could be set that set that would Òreasonably assureÓ Mr. YYYÕ appearance or the safety of the community.  See United 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 or combination of conditions will reasonably assure the appearance.Õ); United States v. Orta, 760 F.2d 887, 891-92 (8th Cir. 1985) (en banc) (ÒIn this case, the district court erred in interpreting the Ôreasonably assureÕ standard set forth in the statute as a requirement that release conditions ÔguaranteeÕ community safety and the defendant's appearance.Ó).

            Here there was no indication whatsoever that Mr. YYY would flea.  First, he has cooperated with the government 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 the Dallas area.  Third, Mr. YYY has been a life long resident of the Dallas area.  Fourth, Mr. YYY had no problems appearing for court in connection with the two misdemeanor charges on his criminal record.  Fifth, he has no passport.  Sixth, while he voluntarily disclosed the existence of a sister in Monterey, Mexico, there was nothing to indicate that he had contact with that sister much less that he has visited her.[3]

            As set forth above, it appears that Magistrate Judge considered the Òweight of the evidenceÓ and the fact that it was alleged that Mr. YYY kept guns in the home where his young daughter resided to conclude that the government proved by Òclear and convincingÓ evidence that he was a danger to his daughter thereby justifying his pretrial detention.  First, Mr. YYY notes that the Òwight of the evidence factorÓ is the least important factor that the Court can consider because the Court cannot make a pretrial determination of guilt.  See United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990) (ÒThe weight of the evidence against the defendant is a factor to be considered but it is Ôthe least importantÕ 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 would make a significant number of Texans a danger to their children  Third, he has no criminal history save two 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 there were conditions of 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. YYY based upon his gender.  It is axiomatic 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 Judge BushÕs detention order because it ignores that Fifth CircuitÕs holding in Jackson and is based upon unconstitutional considerations.   Likewise, this Court can set conditions, however onerous the Court believes they need to be,[4] that would reasonably assure Mr. YYY' appearance in Court and the safety of the community.[5]

                                                                                    Respectfully submitted,

 

 

 

 

 

                                                                                                                                         

                                                                                    F. Clinton Broden

                                                                                    Tx. Bar 24001495

                                                                                    Broden & Mickelsen

                                                                                    2707 Hibernia

                                                                                    Dallas, Texas 75204

                                                                                    214-720-9552

                                                                                    214-720-9594 (facsimile)

 

                                                                                    Attorney for Defendant

                                                                                    Alexander YYY
CERTIFICATE OF SERVICE

            I, F. Clinton Broden, certify that on July 26, 2005, I caused the foregoing document to be served by electronic means, on all counsel of record

 

 

 

 

 

                                                                                    _________________________________     

                                                                                    F. Clinton Broden

 

 

 


[1]        The presumption in drug offenses is intended to prevent flight.  See generally United States v. Jessup, 757 F.2d 378, 395-98 (citing remarks form hearings on the Bale Reform Act).

[2]        The government seems to believe that Mr. YYYÕ admission of guilty supports his detention.  Surely this is not the case.  Who is more likely to flee, a defendant who immediately accepts responsibility or a defendant who steadfastly denies his guilt in the face of overwhelming evidence against him or her?

[3]           It should also be pointed out that the ability to flee is not synonymous with inclination to flee and a simple ability to flee does not justify detention.  See United States v. Himler, 797 F.2d 156, 162 (3rd Cir. 1986 (ÒMere opportunity for flight is not sufficient grounds for pretrial detention.Ó).

[4]           For example, requiring electronic monitoring would "arguably" rebut any presumption a defendant might flee. See United States v. O'Brien, 895 F.2d 810, 816 (1st Cir. 1990).

[5]        Mr. YYY also notes that the government has chosen to indict this case in one massive indictment which will likely lead to an inordinate amount of pretrial delay.  The length of pretrial detention is a factor this Court can consider in resolving this motion.  See, e.g., United States v. El-Hage, 213 F.3d 74, 79-80 (2d Cir. 2000).