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United States v. Moreno

United States Court of Appeals, Fifth Circuit

May 23, 2017

ERNESTO MORENO, Defendant-Appellant.

         Appeal from the United States District Court for the Eastern District of Louisiana

          Before SMITH, PRADO, and GRAVES, Circuit Judges.

          JERRY E. SMITH, Circuit Judge.

         Ernesto Moreno was caught violating the conditions of pretrial release set by a federal magistrate judge ("MJ") in California. A federal MJ in Louisiana held a hearing and ordered that Moreno be detained. The district court a quo affirmed. Moreno challenges the detention order. Finding no error, we affirm.


         Moreno is a lifelong resident of California. In October 2015, he was indicted by a federal grand jury in the Eastern District of Louisiana (the "Eastern District") for conspiring to distribute and possess with intent to distribute methamphetamine. A warrant was issued in the Eastern District for his arrest. In March 2016, he was arrested in the Central District of California ("CDCA"). An MJ in CDCA denied the government's motion for detention and released Moreno on a $50, 000 bond. The conditions of pretrial release required Moreno to avoid illegal drugs and submit to drug testing.

         In April 2016, Moreno tested positive for marihuana, cocaine, and meth-amphetamine and admitted to using them at a party. CDCA pretrial services increased the frequency of Moreno's drug testing and placed him in outpatient drug counseling.

         The same day that the drug test results came back, a police officer in San Fernando, California, responding to reports of a vehicle break-in, found Moreno sitting in the driver's seat of a luxury vehicle, apparently intoxicated, and bleeding from his hand. There was blood-stained cash on the passenger's seat and a clear plastic bag filled with what appeared to be methamphetamine. Moreno's brother, who also seemed intoxicated, was in the back seat.

         The officer arrested Moreno. A search of the car uncovered a backpack full of cash and two bottles containing Promethazine with Codeine (a controlled substance). The officer discovered eighteen prescription Xanax pills in Moreno's pocket. The substance in the clear plastic bag tested positive for methamphetamine.

         Moreno was charged with three California drug crimes and released on a state bond. The government moved in the CDCA to revoke Moreno's bail in the Eastern District case. The MJ in CDCA issued an arrest warrant for Moreno.

         On May 2, before the arrest warrant could be executed, Moreno appeared for a scheduled hearing in the Eastern District, where an MJ accepted his plea of not guilty and heard arguments about whether to detain him. The government noted that since being released from federal custody, Moreno had used drugs and had been charged with drug offenses. The government claimed that detention was necessary because Moreno's lack of ties to the Eastern District made him a flight risk, and his alleged drug-selling made him a danger to the community. Moreno blamed the California drug arrest on his brother, explained that he had relinquished his passport, noted that he had shown up at the hearing, and suggested that he be placed in an inpatient drug treatment program. The Eastern District MJ determined that there were no conditions or combination of conditions that would reasonably assure Moreno's appearance in court or the safety of the community. She ordered that Moreno be held without bail pending trial.

         On appeal to the district court, Moreno disputed the government's portrayal of the circumstances surrounding his arrest in San Fernando: He denied breaking into the car and noted that he had a prescription for Xanax and that his brother had claimed ownership of the other drugs found in the car. He also disputed the government's claim that he was a flight risk and a danger to the community. He noted that he had appeared at the May 2 hearing in the Eastern District, had deep ties to California (where he would reside while on bail), had never been convicted of a felony, and had never been found to be in possession of a firearm. On June 24, the district judge in the Eastern District affirmed the MJ's detention order and adopted her report and recommendation.

         On appeal to this court, Moreno raises four issues. First, he challenges the detention order on the merits. Second, he claims that the district court violated its own local rules. Third, he claims that the district judge violated ethical rules by having his law clerk send out an email about a filing deadline. Finally, he claims that ...

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