United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On December 18, 2013, a grand jury charged defendant with (1) conspiracy to transport illegal aliens, harbor illegal aliens and induce illegal aliens to reside in the United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I) and 1324(a)(1)(B)(i) and (2) failing to depart the United States in violation of 8 U.S.C. § 1253(a)(1)(A). Superseding Indictment (Doc. #91), Counts 1 and 2. On December 27, 2013, United States Magistrate Judge David J. Waxse ordered defendant released on certain conditions. See Memorandum And Order (Doc. #105). This matter is before the Court on the government's Motion To Review Release Order (Doc. #106) filed December 30, 2013. On January 8, 2014, the Court held a hearing on the motion. For reasons stated below, the Court finds that defendant should be detained.
The Court takes judicial notice of the Pretrial Services Report prepared December 23, 2013, and the proffers in the government's memorandum (Doc. #116) and at the detention and review hearings.
Defendant is a native and citizen of the People's Republic of China, who entered the United States on June 14, 1999, with a fraudulent passport. On November 9, 1999, a U.S. immigration judge ordered that defendant be removed from the United States. Defendant appealed and on April 8, 2002, the Board of Immigration Appeals affirmed the decision. On May 8, 2002 and August 21, 2007, defendant asked to re-open her case, but the Board of Immigration Appeals denied the requests. On December 19, 2007, the Board of Immigration Appeals ordered defendant to depart from the United States within 90 days. Defendant has continued to reside in the United States.
Both defendant and her husband worked at the Wei's Super Buffet restaurant in Olathe, Kansas. On November 5, 2013, agents with Immigration and Customs Enforcement ("ICE") - along with other agencies - served several search warrants in Olathe, Kansas, and Kansas City, Missouri. These included a search warrant of the residence of defendant and her husband, Xiang Wang, a few blocks from Wei's Super Buffet restaurant. The government investigation targeted an alleged conspiracy to transport illegal aliens, harbor illegal aliens or induce illegal aliens to reside in the United States, as part of the operation of Wei's Super Buffet restaurants in Olathe and Kansas City.
After law enforcement agents arrested defendant in this case, ICE issued an immigration detainer that is lodged with the United States Marshals Service.
Standard Of Review
The government may seek review of a magistrate judge's order of release 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 he admitted. Lutz , 207 F.Supp.2d at 1251; see United States v. Chagra , 850 F.Supp. 354, 257 (W.D. Pa. 1994).
Standards For Detention
Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., 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 ...