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United States v. Delgado-Ovalle

United States District Court, Tenth Circuit

May 20, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JORGE URIEL DELGADO-OVALLE, Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

This matter is before the Court on Mr. Delgado-Ovalle's Motion For Release (Doc. #49) filed May 6, 2013. On May 17, 2013, the Court held a hearing on the motion. For reasons stated below, the Court finds that defendant should be released on conditions pending trial.

Procedural Background

United States Magistrate Judge David J. Waxse held a detention hearing and on April 12, 2013, he sustained the government's motion for detention. Defendant seeks review of the detention order.

Standard of Review

A defendant may seek review of a magistrate judge's order of detention under 18 U.S.C. § 3145(a)(1). The district court reviews de novo a magistrate judge's order of release or detention. See United States v. Lutz , 207 F.Supp.2d 1247, 1251 (D. Kan. 2002); United States v. Burks , 141 F.Supp.2d 1283, 1285 (D. Kan. 2001). The district court must make its own de novo determination of the facts and legal conclusions with no deference to the magistrate judge's findings. See Lutz , 207 F.Supp.2d at 1251. A de novo evidentiary hearing, however, is not required. See id. The district court may either "start from scratch" and take relevant evidence or incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted. United States v. Torres , 929 F.2d 291, 292 (7th Cir. 1991). The Federal Rules of Evidence do not apply to detention hearings. See 18 U.S.C. § 3142(f). The Court may allow the parties to present information by proffer or it may insist on direct testimony. See Torres , 929 F.2d at 291. The Court also may incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. Lutz , 207 F.Supp.2d at 1251; see United States v. Chagra , 850 F.Supp. 354, 357 (W.D. Pa. 1994).

Standards For Detention

Under the Bail Reform Act of 1984, the Court must order an accused's pretrial release, with or without conditions, unless it "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). In making this determination, the Court must take into account the available information concerning -

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence... or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including - (A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; 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).

The government carries the burden to show that no condition or combination of conditions would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community.[1] Lutz , 207 F.Supp.2d at 1251. The government must show by a preponderance of the evidence that defendant presents a serious flight risk. The government must prove ...


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