United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM OPINION AND ORDER
THOMAS A. VARLAN, Chief District Judge.
This criminal action is before the Court on the defendant's Motion for Review of Detention Order [Doc. 45]. The defendant has been charged with conspiracy to submit false claims, in the form of false and fraudulent income tax returns; conspiracy to commit mail fraud; conspiracy to commit wire fraud; and conspiracy to commit money laundering [Doc. 4]. Viewing the defendant as a serious flight risk and a danger to the community, the government moved the Court to detain her pending trial [Doc. 20]. These issues were discussed during a four-hour hearing on March 20, 2015, before Magistrate Judge C. Clifford Shirley, Jr. [Doc. 21]. After hearing from witnesses, examining exhibits, and considering the attorney's arguments, the magistrate judge determined that detention is warranted in this case [ Id. ].
Although the magistrate judge did not find that the defendant poses a danger to any other person or the community, he found by a preponderance of the evidence that "[t]here is a serious risk that the defendant will not appear" as required [Doc. 24 p. 2-4]. After weighing the factors for and against detention, he concluded that "[t]he only ingredient missing from Defendant's flight is the opportunity to do so" and "there are no conditions that the Court could place on the Defendant to ameliorate the risk of flight" [ Id. at 3-4]. The defendant asked for a rehearing, which the magistrate judge denied [Doc. 43], and then asked this Court to review the detention order [Doc. 45]. The government has responded in opposition [Doc. 50], and the matter is now ripe for review.
I. Standard of Review
Title 18, United States Code, Section 3145(b) provides that "[i]f a person is ordered detained by a magistrate judge, ... the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." A district court reviews de novo a magistrate judge's order of pretrial detention. United States v. Minnici, 128 F.Appx. 827, 828 n.1 (2d Cir. 2005) (citing United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985)); United States v. Stanford, 341 F.Appx. 979, 981 (5th Cir. 2009) (stating that when the district court acts on a motion to revoke or amend a magistrate judge's pretrial detention order, the district court acts de novo and must make an independent determination of the proper pretrial detention or conditions of release); United States v. Garcia, 445 F.Appx. 105, 108 (10th Cir. 2011) (same); see also United States v. Watkins, Criminal Action No. 13-02-KSF, 2013 WL 614252, at *3 (E.D. Ky. Feb. 19, 2013) (reviewing detention order de novo, stating that 18 U.S.C. § 3145 does not set out the standard of review, that the Sixth Circuit has not spoken directly on the issue, and that most district courts in the Sixth Circuit have applied de novo review). The Court may receive additional evidence or simply rely upon the record of the earlier detention hearing. E.g., United States v. Martinez, No. 1:12-cr-210, 2012 WL 4815018, at *1 (W.D. Mich. Oct. 10, 2012).
Under 18 U.S.C. § 3142(e)(1), if "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial." The government must prove risk of flight by a preponderance of the evidence and must prove dangerousness to any other person or the community by clear and convincing evidence. United States v. Hinton, 113 F.Appx. 76, 77 (6th Cir. 2004). As the Sixth Circuit has stated, "the government's ultimate burden is to prove that no conditions of release can assure that the defendant will appear and to assure the safety of the community." United States v. Stone, 608 F.3d 939, 946 (6th Cir. 2010). Because the magistrate judge rested his detention order on risk of flight and the government no longer requests detention based on dangerousness, risk of flight is the only issue discussed herein.
In determining whether the government has met its burden of persuasion, the Court must take into account the available information concerning, among other factors, the nature and circumstances of the offenses charged; the weight of the evidence against the person; and the person's history and characteristics, including the person's character, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, and criminal history. Id.; 18 U.S.C. § 3142(g). The weight of the evidence factor goes to the weight of the evidence of flight risk, not the weight of the evidence of the defendant's guilt. See Stone, 608 F.3d at 948 (noting that "the weight of evidence against the person deals with the factors to be considered in determining whether there are conditions which will assure the appearance of the accused and safety of the community'" (quoting United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985))); United States v. Villegas, No. 3:11-CR-28, 2011 WL 1135018, at *8 (E.D. Tenn. Mar. 25, 2011) ("[T]his factor goes to how convincing the government's arguments of dangerousness and risk of flight are."). The Court will address the factors in turn.
II. The Nature and Circumstances of the Offenses Charged
The defendant has been charged with conspiracy to submit false claims, in the form of false and fraudulent income tax returns; conspiracy to commit mail fraud; conspiracy to commit wire fraud; and conspiracy to commit money laundering [Doc. 4]. The charges against the defendant involve the utilization of false identifications, including fake Guatemalan, Honduran, and Mexican driver licenses and birth certificates [Doc. 24 p. 3; Doc. 39 p. 8].
According to the indictment, people who are not United States citizens or legal permanent residents may be entitled to certain tax refunds [Doc. 3 ¶¶ 12-13]. To fraudulently obtain such refunds, the defendant's coconspirators allegedly used false identification documents to obtain taxpayer identification numbers from the Internal Revenue Service [ Id. ¶ 15]. The taxpayer identification numbers, false documents, and names were then provided to the defendant, and she and her employees allegedly prepared the fraudulent returns [ Id. ¶ 16; Doc. 39 p. 8].
At the detention hearing, an investigator testified that the defendant knew the identification documents were false and that the coconspirators who prepared the false documents are not in custody [Doc. 39 p. 8-9]. The government also stated that the defendant faces a potential sentence of eleven to fourteen years' imprisonment [ Id. at 131]. Having reviewed the indictment and hearing transcript, including evidence that the defendant has contemplated flight to Mexico, as discussed below, the Court finds that the nature and circumstances of the charged offenses support pretrial detention in this case.
III. The Defendant's Personal History and Characteristics
The defendant relies on her personal history and characteristics, particularly her community ties [Doc. 45 p. 5-6]. The defendant has resided in the United States since she entered the country on a visa in 1996, and she became a naturalized citizen in 2012 [ Id. at 5]. She still has family and contacts in Mexico, however [Doc. 39 p. 48]. Her mother, for example, owns a home in Monterrey, Mexico [Doc. 45 p. 6]. The defendant also is married to and has been living for years with a Mexican national who is not legally entitled to live in the United States [ Id. at 5, 5 n.1].
According to the defendant, she "has resided here for quite some time, " has been consistently employed for at least the past ten years, and has no criminal history or history of drug or alcohol abuse [ Id. at 2, 5]. She owns a home and business in Knoxville, employs multiple individuals, and cares for her two minor children, over whom she has full custody and who allegedly have active academic and ...