United States District Court, M.D. Tennessee, Nashville Division
Crenshaw Chief Judge.
ALISTAIR E. NEWBERN United States Magistrate Judge.
matter comes before the undersigned magistrate judge on the
United States' motion for detention of Defendant
Francisco Luna pending trial on two indicted offenses. (Doc.
No. 7.) A hearing was held on June 27, 2017, at which the
Court heard testimony and considered documentary evidence and
the parties' arguments.
conclusion of that hearing, the undersigned entered an order
denying the United States' motion and setting conditions
of release. (Doc. Nos. 22, 23.) This memorandum accompanies
that order and the reasons stated on the record for the
undersigned's order that Luna be released on conditions.
That order is presently stayed pending the district
court's review. (Doc. No. 25.)
defendant may be detained pending trial only upon the
Court's finding 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.” 18 U.S.C. § 3142(e)(1). The
Court's finding that no combination of conditions will
reasonably assure the community's safety must be
supported by clear and convincing evidence. 18 U.S.C. §
3142(f)(2)(B). A finding of risk of flight must be supported
by a preponderance of the evidence. United States v.
Hinton, 113 F. App'x 76, 77 (6th Cir. 2004).
“The default position of the law . . . is that a
defendant should be released pending trial.” United
States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010).
certain classes of offenses, however, including a charge that
carries a maximum term of imprisonment of ten years or more
under the Controlled Substances Act, there is a presumption
that no condition or combination of conditions will assure a
defendant's appearance and the safety of the community.
18 U.S.C. § 3142(e)(3)(A). When this presumption arises,
the defendant bears a “not heavy” burden of
production to rebut it by introducing “at least some
evidence” that he is neither a danger to the community
nor a flight risk. Stone, 608 F.3d at 945. If that
burden is satisfied, the presumption “remains a factor
to be considered among those weighed” by the Court as a
reflection of “Congress's substantive judgment that
particular classes of offenders should ordinarily be detained
prior to trial.” Id.
determining whether there are conditions of release that will
reasonably assure the defendant's appearance and the
safety of any other person and the community, the Court must
consider the following factors: (1) the nature and
circumstances of the offense charged; (2) the weight of the
evidence against the person; (3) the history and
characteristics of the person; and (4) the nature and
seriousness of the danger to any person or the community that
would be posed by the person's release. 18 U.S.C. §
Findings of Fact
United States invoked the rebuttable presumption of detention
established by 18 U.S.C. § 3142(e)(3)(A), citing
Luna's indictment on one count of violating 21 U.S.C.
§ 846 and one count of violating 21 U.S.C. §
841(a)(1), which, as charged, carry mandatory minimum
sentences of ten years imprisonment and maximum life
sentences. (Doc. No. 1.)
rebut this presumption, Luna introduced testimony from two
witnesses and multiple letters from friends and family
members. (Doc. Nos. 15, 16; Def. Ex. 1.)
mother, Iracema Luna, testified that she is a resident of
Edinburg, Texas, where she lives with her husband,
mother-in-law, and son (Luna). Iracema stated that Edinburg
is part of the greater McAllen, Texas, area, located
approximately an hour's drive from the Mexican border.
The family has lived in the same house, which they own, for
eighteen years. Iracema has been a lawful permanent resident
of the United States since 1971. Her husband (Luna's
father) has been a lawful permanent resident since
approximately 1974. Luna is a United States citizen. Iracema
works in their home; her husband is an agricultural worker.
Iracema testified that their large and close-knit family
lives nearby in the McAllen area.
testified that Luna did not finish high school and began
working at around age seventeen. Luna travelled outside of
Texas to work, first to Indiana for agricultural work, then
to Oklahoma to work construction. Iracema believed that Luna
had also recently worked in Kansas and San Antonio, Texas.
She testified that Luna helps support the family with his
wages and returns to live in their Texas home when he is not
away on a job. Iracema described her son as respectful and
obedient. She stated her willingness to serve as a
third-party custodian during Luna's pre-trial release and
affirmed her understanding that doing so would require her to
report any pre-trial release violations, which might result
in Luna's imprisonment.
cross-examination, Iracema testified that she and her husband
travel to Mexico approximately twice a year to visit friends.
She testified that her family now lives in the United States.
Luna does not travel to Mexico often, but has been to Mexico
in the past. Iracema further testified that she was not aware