United States District Court, M.D. Florida, Orlando Division
DALTON, JR. UNITED STATES DISTRICT JUDGE.
September 30, 2019 U.S. Magistrate Judge Embry J. Kidd
ordered Defendant Misael Rodriguez-Sanchez released from
federal custody pending trial, pursuant to 18 U.S.C. §
3145(a). (Doc. 10 (“Order”).)
Upon the Government's motion, Magistrate Judge Kidd
stayed Defendant's release while the Order was appealed.
(Docs. 11, 15.) The Government then moved for revocation of
the Order (Doc. 22 (“Motion”)) and Defendant
responded (Doc. 36). The Court held a hearing on the Motion
on October 28, 2019 (Doc. 50
(“Hearing”)), where it orally
denied the Motion. This memorializes that ruling.
was born in Guerrero, Mexico in 1973. (Doc. 21, p. 1.) He is
a citizen of Mexico. (Doc. 22, p. 2.) While the circumstances
of his immigration to the United States are unclear, he was
first charged with operating a motor vehicle without a
license in the United States in 2000. (Id. at 3.)
Then followed a series of criminal charges, with allegations
ranging from minor traffic violations to resisting an officer
with violence, culminating in two charges of domestic
violence that occurred about a month apart in 2010.
(Id. at 3-4; see also Doc. 50.) Ultimately,
however, Defendant was convicted only of the second domestic
violence incident, where he plead guilty to a misdemeanor.
(Doc. 22, pp. 4-5; Doc. 50.) Shortly thereafter, while being
held at the Orange County Jail for failure to appear,
Immigration and Customs Enforcement
(“ICE”) officers took him into
custody and removed him to Mexico on May 5, 2011. (Doc. 22,
p. 5; Doc. 19, p. 17.)
point, Defendant re-entered the United States. (Doc. 22, p.
2.) Before his most recent arrest for illegal re-entry,
Defendant worked in concrete construction. (Doc. 19, p.
9:8-12.) He has been married to his wife for 30 years, but
they have been separated the past 11 years. (Doc. 21, p. 1.)
He has three adult children; he lives with his son and
daughter-in-law (“North Main
House”) and maintains daily contact with his
other two children, all of whom reside in Apopka, Florida.
(Id.) He co-owns the North Main House with his wife.
(Doc. 50; see also Doc. 19, 12:2-4, 23:17-24.)
Defendant's daughter, Josephina Rodriguez, is willing to
be a third-party custodian for her father. (Doc. 19, p.
44:3-15.) If released from custody, Defendant would reside at
her address in Apopka. (Doc. 50.)
request, a district court will promptly review a pretrial
release order issued by a magistrate judge. 18 U.S.C. §
3145(a) (2018); U.S. v. Fuentes-Flores, No.
2:14-cr-66-FtM-38CM, 2014 WL 3908168, at *2 (M.D. Fla. Aug.
11, 2014). That review is de novo.
Fuentes-Flores, 2014 WL 3908168, at *2; U.S. v.
Hurtado, 779 F.2d 1467, 1481 (11th Cir. 1985).
“Review by the district court contemplates an
‘independent consideration of all facts properly before
it.'” U.S. v. Megahed, 519 F.Supp.2d 1236,
1241 (M.D. Fla. 2007) (quoting U.S. v. Gaviria, 828
F.2d 667, 670 (11th Cir. 1987)). The district court may
undertake a careful review of the parties' papers and the
evidence presented at the detention hearing or, if necessary,
the Court “may marshal further evidence by convening a
hearing.” Id. at 1241-42 (citation omitted).
Here, the Court conducted a de novo review of the
papers filed by the parties and the transcript of the hearing
held before Magistrate Judge Kidd and held a hearing of its
own. (Docs. 7, 22, 36, 50.) Upon this record, the Court
denies the Motion.
our society liberty is the norm, and detention prior to trial
or without trial is the carefully limited exception.”
U.S. v. Salerno, 481 U.S. 739, 755 (1987). The Bail
Reform Act, which governs if and how a defendant is to be
released pretrial, presumes release is appropriate
“absent a demonstration that the defendant is likely to
flee or is a danger to the community.” U.S. v.
Espinoza-Ochoa, 371 F.Supp.3d 1018, 1020 (M.D. Ala.
2019); see also 18 U.S.C. § 3142(b) (“The
judicial officer shall order the pretrial release of the
person . . . unless the judicial officer determines that such
release will not reasonably assure the appearance of the
person as required or will endanger the safety of any other
person or the community.”). Detention is only
appropriate when the Court “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.
Government bears the burden of establishing, by a
preponderance of the evidence, Defendant is a serious flight
risk. See U.S. v. King, 849 F.2d 485, 489 (11th Cir.
1988); U .S. v. Medina, 775 F.2d 1398, 1402 (11th
Cir. 1985); U.S. v. Al-Arian, 280 F. S u pp. 2d
1345, 1347 (M.D. Fla. 2003). The burden on the Government is
even higher if it seeks to detain Defendant because he is a
risk to another person or to the community. The Government
must show by clear and convincing evidence that “no
condition or combination of conditions will reasonably assure
the safety of any other person and the community.” 18
U.S.C. § 3142(f); see also Medina, 775 F.2d at
1402; Al-Adrian, 280 F.Supp.2d at 1347.
Bail Reform Act enumerates four factors for the Court to
consider when determining whether conditions of release can
reasonably assure the appearance of the defendant and secure
the safety of the community:
(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence, a
violation of section 1591, 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, ...