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United States v. Benitez-Elvira

United States District Court, M.D. North Carolina

December 5, 2014

UNITED STATES OF AMERICA,
v.
NAZARIO BENITEZ-ELVIRA

MEMORANDUM OPINION AND ORDER

L. PATRICK AULD, Magistrate Judge.

This case comes before the Court on an oral motion for detention by the United States (Docket Entry dated Nov. 4, 2014). For the reasons that follow, the Court grants that motion.

BACKGROUND

A grand jury for this District indicted the defendant for making a false statement on a passport application by using a name and Social Security number he knew did not belong to him, in violation of 18 U.S.C. § 1542. (Docket Entry 1.) Following the disclosure to the parties of a Pretrial Services Report, the case came before the Court for a hearing on an oral motion for detention by the United States, pursuant to 18 U.S.C. § 3142(f)(2). (See Docket Entry dated Nov. 12, 2014; see also Docket Entry dated Nov. 4, 2014.) At the hearing, the defendant (through counsel) cross-examined the federal agent called by the United States and proffered a release plan, at which point the Court continued the matter to allow the Probation Office to investigate the proposed third-party custodian. (See Docket Entry dated Nov. 12, 2014.)

The defendant subsequently made a filing that addressed, inter alia, the Probation Office's addendum regarding the proposed third-party custodian. (Docket Entry 10.) The Court then reconvened the hearing, received the proposed third-party custodian's testimony, entertained the arguments of counsel, and took the matter under advisement. (See Docket Entry dated Nov. 25, 2014.) The defendant thereafter submitted additional authority. (Docket Entry 11.) He also pleaded guilty and the Court (per United States District Judge Catherine C. Eagles) found a factual basis. (See Docket Entry dated Dec. 2, 2014; see also Docket Entries 12, 13.)

Pursuant to 18 U.S.C. § 3142(e)(1), the Court concludes, by a preponderance of the evidence, that the defendant poses a risk of flight that available release conditions do not reasonably address and therefore it enters this written order of detention, as required by 18 U.S.C. § 3142(i).[1]

DISCUSSION

In evaluating the issue of release or detention, the Court has considered the following statutorily-prescribed factors: "(1) the nature and circumstances of the offense charged...; (2) the weight of the evidence against the [defendant]; [and] (3) the history and characteristics of the [defendant]...." 18 U.S.C. § 3142(g).[2] Based on the record before it, the Court makes the following findings of fact and/or conclusions of law:

1) the offense charged against the defendant is:

A) serious in nature, as reflected by the substantial, available penalties, see, e.g., 18 U.S.C. § 1542 (authorizing 10-year prison term for even non-aggravated violations); United States v. Duranseau, 26 F.3d 804, 808 (8th Cir. 1994) (agreeing that offense punishable by up to 10 years in prison constitutes a serious offense); United States v. Melguizo, 824 F.2d 370, 371 (5th Cir. 1987) ("We find that a possible sentence of ten years is also sufficient indication that the offense is serious."); and

B) involved circumstances indicative of a serious risk of nonappearance, see, e.g., United States v. Donagal, No. CR 14-285-JST(KAW), 2014 WL 4418192, at *4 (N.D. Cal. Sept. 8, 2014) (unpublished) ("The possibility of flight is bolstered by the government's report that Defendant presented himself under a false identity... and had fraudulent identification documents to support that identity."), aff'd, 2014 WL 6601843 (N.D. Cal. Nov. 18, 2014) (unpublished);[3] United States v. Valerio, Crim. Action No. 07-10421-FDS, 2009 WL 2058851, at *2 (D. Mass. July 10, 2009) (unpublished) ("[A defendant's] history of using a false identity is also a relevant factor in the risk-of-flight analysis."); United States v. Dreier, 596 F.Supp.2d 831, 832 (S.D.N.Y. 2009) (describing "assumption of false identity [as] a sine qua non to any successful flight from justice"); United States v. Vasconellos, 519 F.Supp.2d 311, 317 (N.D.N.Y. 2007) ("When considering risk of flight, ... [p]ertinent factors include... the use of false names."); United States v. Ailemen, 165 F.R.D. 571, 598 (N.D. Cal. 1996) (recognizing that a defendant's commission of passport fraud supported view that he presented "serious flight risk");

2) the weight of the evidence against the defendant is overwhelming, in that:

A) an investigation into a United States passport application submitted in the name of Eduardo Matheews Martinez, revealed (including through a witness interview) that the photograph of the applicant actually depicted the defendant; and

B) the defendant admitted that he entered the United States illegally, purchased false identity information which he used to fraudulently obtain an identification document in a false name, and ...


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