United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
this Court is Defendant Jose Luis Amparo Nova's Appeal of
Magistrate Judge Patricia A. Sullivan's oral Order from
June 29, 2016, in which she denied Defendant's request
for release on bail under the Bail Reform Act, 18 U.S.C.
§ 3142. (See Def's Mot. for Recons. of
Release, ECF No. 16; June 29, 2016 Text Order.) For the
reasons set forth below, Nova's Motion is DENIED.
the district court acts on a motion to revoke or amend a
magistrate's pretrial detention order, the district court
acts de novo and must make an independent
determination of the proper pretrial detention or conditions
for release.” United States v. Rueben, 974
F.2d 580, 585 (5th Cir. 1992) (citation omitted); see
also Fed. R. Crim. P. 59(a); United States v.
Cidraz-Santiago, 18 F.Supp.3d 124, 126 (D.P.R. 2014)
(“A district court reviews the magistrate judge's
order [regarding pre-trial detention] de novo and
need not defer to the magistrate judge's findings or give
specific reasons for rejecting them.”)(citations
detention is appropriate when the government presents clear
and convincing evidence that “no condition or
combination of conditions will reasonably assure the
appearance of the person and the safety of any other person
and the community . . . .” United States v.
Tortora, 922 F.2d 880, 882 (1st Cir. 1990); see
also 18 U.S.C. § 3142(e). Moreover, where there is
probable cause to believe that the defendant committed an
offense under the Controlled Substances Act for which he may
receive a sentence of ten or more years, the statute
“sets forth a rebuttable presumption that no condition
or combination of conditions will reasonably assure the
appearance of the accused and the safety of the community . .
. .” Cidraz-Santiago, 18 F.Supp.3d at 126
(citations omitted). “[A] grand jury indictment is
sufficient to establish probable cause for purposes of
triggering the rebuttable presumptions in section
3142(e).” United States v. Vargas, 804 F.2d
157, 163 (1st Cir. 1986).
assessing whether there is any combination of conditions that
will reasonably assure the defendant's appearance and the
safety of the community, the court must consider “(1)
the nature and circumstances of the offense charged; (2) the
weight of the evidence as to guilt or innocence; (3) the
history and characteristics of the accused, including past
conduct; and (4) the nature and gravity of the danger posed
by the person's release.” Tortora, 922
F.2d at 884; see also 18 U.S.C. 3142(g). Even if it
is rebutted, the statutory presumption remains a permissible
consideration alongside the other 3142(g) factors in
assessing whether the defendant poses a flight risk or a
danger to the community. United States v. Gomez, No.
CR. 1:05-M-113A, RR.1:05-M-114A, 2005 WL 2250852, at *2
(D.R.I. Sept. 15, 2005) (citing United States v.
Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988)).
grand jury returned an Indictment against Nova charging him
with violations of the Controlled Substances Act.
(See Indictment, ECF No. 14.) Specifically, Nova has
been charged with Possession with Intent to Distribute One
Kilogram or More of Heroin, and Conspiracy to Possess with
Intent to Distribute One Kilogram or More of Heroin.
(Id. at 1-2.) Thus the 3142(e) rebuttable
presumption applies. Nova contends that he has presented
evidence to rebut the presumption and therefore should be
released on his personal recognizance. The Court disagrees.
Nova argues that his post-release employment prospects, his
family ties to the United States, and his offer to use his
wife's house as surety provide adequate assurance that he
is not a flight risk and that he will appear at trial.
However, the record shows that Nova has been married for a
very short period of time and that he has no meaningful
interest in the house offered as collateral. The government
has presented evidence that the house is owned, paid for, and
maintained by his wife, and that Nova has not invested any
significant time or money into the property. Thus, there is
no evidence that Nova has a personal stake in protecting the
property and, therefore, posting the home as collateral
cannot assure his appearance at trial. Similarly, it appears
that Nova's job history is intermittent and insubstantial
and, therefore, the promise of similarly sporadic employment
upon release does not provide any meaningful anchor to the
community or the area. Additionally, the record indicates
that Nova has strong family ties in both the United States
and the Dominican Republic; these ties balance each other out
and this Court does not find one family connection more
compelling than the other. However, the government has
submitted evidence that Nova's legal status in the United
States is uncertain and, in light of Nova's family
connections in the Dominican Republic, Nova's uncertain
legal status and these pending criminal charges may provide
him with a motivation to flee to the Dominican Republic upon
the assurances that normally accompany post-release
employment prospects, family ties to the area, and the
posting of one's home as bail are not present in this
case. The facts of this case and the arguments Nova has made
are not sufficient to reassure the Court that any conditions
of release will guarantee Nova's appearance at trial.
Therefore, the Court concludes that the government has proven
by clear and convincing evidence that Nova poses a flight
has not proffered any evidence to rebut the presumption that
he poses a danger to the community upon release, and
misstates the law by suggesting that such risk of danger
implies only a risk of violent crime. It is well-established
that “[d]anger [as it is used in the statute] was not
meant to refer only to the risk of physical violence.”
Tortora, 922 F.2d at 884 (citation omitted); see
also United States v. Leon, 766 F.2d 77, 81 (2d Cir.
1985) (“[T]he harm to society caused by narcotics
trafficking is encompassed within Congress' definition of
‘danger.'”). However, Nova contends that the
prospect of home confinement and electronic monitoring will
reasonably assure the safety of the community upon his
release, and therefore he has rebutted the statutory
presumption in favor of pre-trial detention. The Court
assessing Nova's danger to the community, the Court
considers the following: the weight of the evidence
supporting the government's allegations, specifically the
fact that the criminal complaint included transcripts of
wiretap communications pertaining to Nova's role in the
drug trafficking conspiracy; that the crime charged involves
substantial quantities of heroin; that Nova's alleged
role in the conspiracy appears to be significant; and that a
considerable amount of the evidence against Nova was
confiscated from the home to which he would presumably be
confined upon release.
the use of electronic monitoring may mitigate the risk of
flight, it does nothing to mitigate the danger Nova poses to
the community, particularly given the allegations and
supporting evidence that Nova participated in a large-scale
heroin-trafficking scheme from his home. Notably,
much of the evidence the government included in its complaint
was collected from the home to which Nova would presumably be
confined upon release. This suggests that confinement to the
house would be ineffective to curtail the alleged drug
trafficking activity that poses a danger to the community.
Therefore, this Court finds that the government has presented
clear and convincing evidence that there exists no
combination of conditions that can reasonably assure the
safety of the community in the event of Nova's pre-trial
Final Memorandum in Support of Release, Nova reiterates all
of these arguments and additionally argues that bail is
appropriate in light of the fact that his father-in-law
recently died and his mother-law-lives with his wife in the
same house that Nova has offered as collateral for his bail.
(ECF No. 33.) These facts neither serve as conditions of
release that are likely to assure Nova's appearance at
trial or the safety of the community, nor do they inform this
Court's assessment of the 3142(g) factors. Thus, these
additional facts are not relevant to the determination of
whether pre-trial detention is appropriate in this case.
foregoing reasons, the Defendant's appeal of Magistrate