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United States v. Garcia-Anselmo

United States District Court, E.D. North Carolina, Western Division

February 2, 2015

UNITED STATES OF AMERICA,
v.
APOLINAR GARCIA-ANSELMO, Defendant.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter came before the court for detention hearing January 29, 2015, upon the government's request for review of the magistrate judge's release order (DE 35), filed January 22, 2015. For reasons set forth below, defendant is ordered DETAINED.

BACKGROUND

Defendant, charged in complaint filed January 14, 2015, with reentry into the United States of America by a deported alien, in violation of 8 U.S.C. § 1326(a), appeared before the Hon. Robert T. Numbers, II, United States Magistrate Judge, for hearing January 21, 2015, on the government's motion for pretrial detention. The magistrate judge denied the motion, entering an order setting a combination of release conditions, including that the defendant be released to the custody of his wife, Cirila Garcia Pineda ("Garcia Pineda"), and placed on home detention supported by electronic monitoring. This decision subsequently was stayed upon the government's request, pending this court's review.

At hearing January 29, 2015, the court received testimony from Special Agent Thomas D. O'Connell, Resident Agent-In-Charge on behalf of the Department of Homeland Security, Immigration and Customs Enforcement ("O'Connell"), together with testimony of his supervisee, Thomas R. Halvas, Agent ("Halvas"), an arresting officer in the case. The government also relied upon the declaration of Harold W. Jordan, Special Agent, Drug Enforcement Administration ("Jordan"), received in Case No. 4:12-CV-136, pending before the undersigned, related to the 2012 seizure of $307, 970.00, from defendant. Defendant offered the proposed third party custodian, Garcia Pineda, also to supplement her testimony developed January 21, 2015.

The court has benefit of the transcript of that proceeding before the magistrate judge, and the pretrial services report wherein detention is recommended. Error in the probation officer's accounting of defendant's criminal record was corrected at hearing, where the October 21, 1985 arrest was on a misdemeanor offense, illegal reentry and aiding and abetting, and not the felony offense therein reported. Also, O'Connell testified to a 1987 arrest for smuggling seven aliens, for which defendant was convicted, sentenced, and ultimately deported in March 1988, not appearing in the report.

COURT'S DISCUSSION

Pursuant to 18 U.S.C. § 3145(a), if a person is ordered released by a magistrate judge, the attorney for the government may file with the district court a motion for revocation of the order. 18 U.S.C. § 3145(a). The district court should conduct a de novo review of the decision by the magistrate judge. United States v. Clark, 865 F.2d 1433, 1437 (4th Cir. 1989); United States v. Williams, 753 F.2d 329, 333 (4th Cir. 1985); United States v. Ramey, 602 F.Supp. 821, 822-24 (E.D. N.C. 1985). In doing so, the court makes an independent determination as to whether the magistrate judge's findings are correct based on the court's review of the evidence before the magistrate judge. See Williams, 753 F.2d at 333-34. As done in this instance, the court may conduct a further evidentiary hearing if it is necessary or desirable in carrying out the review. See id., at 333; see also United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990) (district court has discretion on whether to conduct a further evidentiary hearing); United States v. Delker, 757 F.2d 1390, 1393-94 (3rd Cir. 1985); United States v. Fortna, 769 F.2d 243, 249-50 (5th Cir. 1985) (same).

Upon thorough review of the government's motion for pretrial detention and the magistrate judge's order of release, the matters of record in this case including transcript of the earlier hearing, and having received additional testimony and heard the arguments of the parties, the court finds the decision to deny the motion for pretrial detention and release defendant was in error. For the reasons set forth below, it is ordered that defendant be detained pending disposition of the case.

In determining whether there are conditions of release, pursuant to § 3142(c), that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, the court must take into account the available information concerning:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(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, ...

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