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United States v. Wang

United States District Court, Tenth Circuit

December 27, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
XIANG WANG, Defendant.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

On December 18, 2013, a grand jury charged Defendant Xiang Wang, an alien from the People's Republic of China, with willfully failing to depart from the United States within a period of 90 days from the date a final order of removal was entered against him.[1] This matter is before the Court on the Government's oral motion for pretrial detention of Defendant (ECF No. 4) made on December 20, 2013. The Court held a hearing on the motion on December 27, 2013. The Court has considered the motion and the statements of counsel during the hearing, and, for the reasons set forth below, finds that the motion for pretrial detention should be denied.

I. Temporary Detention to Permit Deportation

First, pursuant to 18 U.S.C. ยง 3142(d), the Court is required to order temporary detention for up to ten days to permit deportation of a defendant. The Court must order such detention if it determines that the defendant is not a citizen of the United States nor lawfully admitted for permanent residence, and that he or she "may flee or pose a danger to any other person or the community."[2] If temporary detention is ordered, the Court must then notify the appropriate official of the Department of Homeland Security to allow them to take the defendant into custody for the purpose of deportation.

As discussed in greater detail below, the Court does not find that Defendant "may flee or pose a danger to any other person or the community." As a result, the Court concludes that temporary detention to permit deportation is not required here.

II. Standard for Detention

Under the Bail Reform Act of 1984, the Court must order the pretrial release of the accused, 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."[3] 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, a violation of section 1591 [sex trafficking of children], a Federal crime of terrorism, 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.[4]

The government has the burden to prove the risk of flight by a preponderance of the evidence.[5] The government must prove a danger to other persons or the community by clear and convincing evidence.[6] The court must resolve all doubts ...


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