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United States v. Jimenez

United States District Court, E.D. Kentucky, Central Division, Lexington

April 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ELIEZER ALBERTO JIMENEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C. REEVES UNITED STATES DISTRICT JUDGE.

         Defendant Eliezer Jimenez was arrested on February 21, 2019, in the District of Minnesota on an arrest warrant issued in the Eastern District of Kentucky. A detention hearing was held before United States Magistrate Judge Steven E. Rau in the District of Minnesota. Magistrate Judge Rau ordered that Jimenez be released pending the resolution of his case. [Record No. 55-5] The United States then filed a motion for the revocation of the release order. [Record No. 52] The release order was suspended by the undersigned and Jimenez was transferred from the District of Minnesota to this district. Because the § 3142 factors weigh in favor of detaining the defendant pending the resolution of the case, the government's motion to revoke Magistrate Judge Rau's detention order will be granted.

         I.

         Jimenez was charged with knowingly conducting and attempting to conduct a financial transaction affecting interstate and foreign commerce, in violation of 18 U.S.C. § 1956.[1] A detention hearing was held in front of Magistrate Judge Rau on February 26, 2019, in the District of Minnesota. [Record No. 55-5] The United States sought detention and transport to the Eastern District of Kentucky based on the defendant's prior deportation and potential risk of non-appearance. The magistrate judge released the defendant pending the disposition of the case and placed him on home detention. [Record No. 55-6, p. 3] Magistrate Judge Rau also imposed a $25, 000.00 unsecured bond. [Record No. 55-7] The United States sought a stay of the release order pending review by this Court, which was granted for 24-hours. The United States filed a motion for revocation of the release order in this district pursuant to 18 U.S.C. § 3145(a)(1) because it believes the defendant is a flight risk. [Record No. 52] United States Probation Officer Chad Moss agrees with the recommendation of detention contained in the bond report prepared by the United States Probation Office in the District of Minnesota.

         Jimenez reported that he was born in Mexico and moved to Arizona with his mother when he was 11 years' of age. He later moved to Minnesota and resided there with his wife and two children. He has a child from a previous marriage who also resides in Minnesota.

         Jimenez claims he was granted asylum in 2015 and cannot return to Mexico. However, the U.S. Immigration and Customs Enforcement indicated that the defendant was not granted asylum and is on supervision pending deportation. A U.S. Deportation Officer verified the defendant will be removed to Mexico should he be released pending further proceedings. During the hearing held on this date, counsel for the defendant requested additional time to address Jimenez's alien status. However, that request was denied, with the understanding that the Court would not assume he is subject to an immigration detainer - and would not be detained and/or removed from the United States if released.

         Jimenez reported that he is self-employed as a remodeler, but his employment cannot be verified and his wife has indicated that he has been unemployed since December 2017.

         The defendant has a lengthy criminal history, including convictions for domestic assault and felony possession of cocaine. He also has thirteen instances of failing to appear for court hearings and three instances of violating conditions of supervision. Many of his charges are for driving without a license, no proof of insurance, and driving after suspension.

         The bond report lists several reasons that the defendant poses a risk of non-appearance, including: (i) the offense charged, (ii) lack of ties to the district, (iii) his criminal history that includes a record of failing to appear when ordered, (iv) his criminal activity while under supervision, (v) his lack of verifiable, legitimate employment, (vi) his lack of compliance with supervision, and (vii) his ties to a foreign country. The bond report also notes that the defendant poses a risk of danger due to: (i) the nature of the instant offense, (ii) his prior arrests and convictions, (iii) his history of violent behavior, (iv) his lack of supervision compliance, (v) his criminal activity while on supervision, (vi) his history of domestic violence, and (vii) a pattern of similar criminal activity history. Based on these factors, the Probation Officer in Minnesota concluded that there are no conditions or combination of conditions which exist that would ensure the defendant's appearance at future court proceedings. Magistrate Judge Rau, however, disagreed with the probation officer's well-supported analysis.

         II.

         If a defendant is ordered to be released by a magistrate judge, “an attorney for the government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release.” 18 U.S.C. § 3145. A defendant may be held pending the resolution of his case only if a 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.” 18 U.S.C. § 3142(e). “The default position . . . is that a defendant should be released pending trial.United States v. Stone, 608 F.3d 939');">608 F.3d 939, 945 (6th Cir. 2010). The United States must prove that no conditions of release can ensure the safety of the community and the defendant's appearance in Court. Id. Further, it must demonstrate the defendant's risk of non-appearance based on a preponderance of the evidence. See United States v. Hazime, 62 F.2d 34');">762 F.2d 34, 37 (6th Cir. 1985); United States v. Curry, 2006 U.S. Dist. LEXIS 49661 *1, *16 (E.D. Ky. 2006).

         The factors the Court considers in deciding whether to release a defendant pending trial are set forth in 18 U.S.C. § 3142(g). They are:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591 [18 USCS ยง 1591], a Federal crime of terrorism, or involves a minor victim or a ...

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