United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey Chief United States District Judge.
the Court is the Government's Motion and Brief in Support
of United States' Appeal of Magistrate Judge's
Release Order. ECF No. 17. Defendant has responded. ECF No.
20. The Court finds this matter ripe for consideration.
February 11, 2019, a criminal complaint was filed in the
instant case accusing Defendant of illegal re-entry in
violation of 8 U.S.C. § 1326(a). ECF No. 1. A detention
hearing was held on February 21, 2019, before the Honorable
Barry A. Bryant, United States Magistrate Judge for the
Western District of Arkansas. ECF No. 10. Judge Bryant found
that pretrial detention was not warranted and released
Defendant on an unsecured appearance bond. ECF No. 11. Judge
Bryant further issued orders setting various additional
conditions of release. ECF Nos. 12, 14.
March 1, 2019, the Government filed a Petition to Stay Orders
of Pre-trial Release. ECF No. 15. On March 5, 2019, Judge
Bryant granted the motion, staying his orders granting and
setting the conditions of Defendant's pre-trial release
until March 25, 2019. ECF No. 19.
Government filed the instant motion, moving the Court to
order that Defendant be held in pre-trial detention on March
4, 2019. ECF No. 17. Defendant has responded and opposes the
requested relief. ECF No. 20.
March 14, 2019, an Indictment was filed against Defendant,
alleging violations of 18 U.S.C. § 1546(a) for use of
fraudulent residency/citizenship documents, 42 U.S.C. §
408(a)(7)(B) for use of a fraudulent social security number
not assigned to him, and 8 U.S.C. § 1326(a) for illegal
re-entry. ECF No. 22.
18 U.S.C. § 3142 governs the pre-trial release or
detention of a defendant. As stated above, in the instant motion
the Government moves for the pre-trial detention of
Defendant. The Government's request for pre-trial
detention requires a two-step inquiry. See United States
v. Villatoro-Ventura, 330 F.Supp.3d 1118, 1124 (N.D.
Iowa 2018). First, the Court must determine whether the
Government has shown by a preponderance of the evidence that
it is authorized to seek detention under section 3142(f)(1)
or (2). Id. Section 3142(f)(2) allows for the
Government- or the Court on its own initiative-to move for
detention where there is a serious risk that a defendant will
flee. The parties do not specifically address the two-step
analysis or otherwise argue which subsection of section
3142(f) is applicable, however, upon review of the briefing,
it appears the Government contends that Defendant is a flight
risk, as contemplated by section 3142(f)(2)(A). Moreover, at
the detention hearing Judge Bryant found that “there is
a risk of flight in this matter, ” ECF No. 21, p. 29,
and the parties do not appear to oppose this portion of Judge
Bryant's findings. Accordingly, the Court finds that
section 3142(f)(2)(A) has been satisfied so as to allow the
Court to move on to the second step of the analysis on which
the parties focus.
Court now must ask whether any condition or combination of
conditions could be imposed to reasonably assure
Defendant's appearance at trial. 18 U.S.C. § 3142(e)
(stating that a court may only order pre-trial detention upon
a 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[.]”); Villatoro-Ventura, 330 F.Supp.3d
at 1125. In making this determination, courts must:
take into account the available information concerning . . .
(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. § 3142(g)(1)-(4).
instant motion, the Government asserts that no condition or
set of conditions could reasonably assure Defendant's
appearance at trial. The Government must show by a
preponderance of the evidence that no release condition or
conditions will reasonably assure Defendant's appearance.
See United States v. Kisling, 334 F.3d 734, 735 (8th
Cir. 2003) (“After reviewing the district court's
order, we agree the government met its burden to show by a
preponderance of the evidence that no condition or set of
conditions would reasonably assure [the defendant's]
appearance for trial.”).
support of its position, the Government argues that the
weight of the evidence regarding the instant charge of
illegal re-entry in violation of 8 U.S.C. §
1326(a) is substantial. The Government further
notes that Defendant is an undocumented immigrant who
currently has an Immigration and Customs Enforcement
(“ICE”) detainer lodged against him and has been
previously removed from the United States. Accordingly, the
Government states that Defendant is “subject to
re-removal under” his prior order of removal.
Furthermore, the Government notes that it introduced evidence
at the detention hearing establishing that, in 2017,
Defendant was convicted of sexual assault in the fourth