United States District Court, W.D. Texas, Austin Division
ORDER
SUSAN
HIGHTOWER UNITED STATES MAGISTRATE JUDGE.
Before
the Court is Defendant's Motion for Reconsideration of
Order of Detention Pending Trial (“Motion for
Reconsideration”) (Dkt. No. 278).
I.
BACKGROUND
On
September 30, 2019, the Court held an Arraignment and
Detention Hearing and ordered Defendant Gerardo
Cruz-Jaramillo detained pending trial, finding by a
preponderance of the evidence that no condition or
combination of conditions of release would reasonably assure
the defendant's appearance as required (Dkt. No. 217).
The Court's decision was based in part on the fact that
background information provided by Defendant was unverified
at the time of his detention hearing. Also, the United States
argued at the Detention Hearing that “certain facts
described by defense counsel were unverified.” (Second
Response to Defendant's Motion for Reconsideration of
Order of Detention Pending Trial, Dkt. No. 300).
Specifically, the United States argued that in a case such as
this one, where a rebuttable presumption of detention arises
under 18 U.S.C. § 3142(e)(3), [1] the presumption must be
rebutted with verified information.
II.
ANALYSIS
Defendant's
Motion for Reconsideration cites 18 U.S.C. §
3142(f)(2)(B), which states that a
hearing may be reopened, before or after a determination by
the judicial officer, at any time before trial if the
judicial officer finds that information exists that was not
known to the movant at the time of the hearing and that has a
material bearing on the issue whether there are conditions of
release that will reasonably assure the appearance of such
person as required and the safety of any other person and the
community.
The
Motion for Reconsideration states that after his detention
hearing, Defendant's mother verified the personal
information contained in his Pretrial Services Report,
including
his history, residence, and family ties, along with his
employment history. This information was not known or
available at the time of his initial detention hearing. This
verification has a material bearing on the issue of
detention/conditions of release due to the lack of
verification being a reason for his initial detention.
Dkt. No. 278 at 1; see also Exhibit A to the Motion
for Reconsideration (Pretrial Services Report, Dkt. No. 279)
(sealed).
On
October 18, 2019, a hearing was held on Defendant's
Motion for Reconsideration. During the hearing,
Defendant's mother provided testimony verifying the
personal information previously provided by Defendant and
also provided additional information concerning
Defendant's history and contact with her and his extended
family in the Austin area. As stated at the conclusion of the
hearing, however, the Court finds that the information does
not have a material bearing on the issue whether there are
conditions of release that will reasonably assure the
appearance of Defendant as required.
After
considering the factors set forth in 18 U.S.C. §
3142(g), information in the Pretrial Services Report, and the
evidence and arguments of counsel presented at the detention
hearing and at the hearing on Defendant's Motion for
Reconsideration, it remains the conclusion of the Court that
Defendant must be detained pending trial because the United
States has proven by a preponderance of the evidence that no
condition or combination of conditions of release will
reasonably assure Defendant's appearance as required.
Reasons for detention include Defendant's significant
family ties outside of the United States, particularly the
fact that his three-year-old son lives in Mexico, where
Defendant has traveled to visit him. Additional reasons that
Defendant presents a risk of nonappearance include other
personal information contained in the Pretrial Services
Report and the fact that Defendant may be subject to a
lengthy period of incarceration if convicted of the charge
against him.
III.
CONCLUSION
For the
foregoing reasons, IT IS ORDERED that
Defendant's Motion for Reconsideration of Order of
Detention ...