Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona GARY M. RESTAINO Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 017450 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. Maria Rosa Barragan-Mercado, Defendant. UNITED STATES' RESPONSE TO DEFENDANT'S MOTION TO EXONERATE THE BOND CR04-1086-PHX-EHC

Defendant has moved to exonerate the $10,000.00 cash bond in this case for the putative reason that the docket shows her as released as to the instant offense. The government opposes exoneration for two reasons: first, defendant's release on the instant offense has already been revoked; and second, the government seeks forfeiture of the bond. A. Factual Background

Defendant had her initial appearance in Yuma on the instant charges of bringing aliens to the United States on September 21, 2004, and was held pending a detention hearing in Phoenix. On September 24, 2004, after a detention hearing, Magistrate Judge Edward Voss ordered defendant released on the payment of a $10,000.00 cash bond and the compliance with other conditions. In particular, defendant was required to avoid committing another federal crime and to avoid ingestion of any controlled substance "unless prescribed for defendant by a licensed medical practitioner in the course of his/her legitimate medical practice." (Dkt. # 7.) A cash bond of $10,000.00 was tendered, through an affidavit by Yuliana Barragan, on September 27, 2004 (Dkt. ## 6, 9) and defendant was released from custody pending trial.

Case 2:04-cr-01086-EHC

Document 90

Filed 12/19/2005

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Prior to the sentencing in this matter defendant tested positive for cocaine, and Pretrial

2 Services Officer Ruben Salgado filed a Petition to Revoke on June 24, 2005. (Dkt. # 69.) 3 Defendant was detained and held to answer and the Court referred the matter for a revocation 4 hearing, but released the defendant on July 8, 2005 pending a continued sentencing date. (Dkt. 5 ## 73, 74.) On August 13, 2005, prior to the sentencing date, defendant was arrested on a new 6 alien smuggling offense, and subsequently charged in CR05-883-PHX-EHC. Defendant was 7 held in custody from the date of her arrest in CR05-883, and her pretrial release in the instant 8 case was revoked on September 6, 2005. (Dkt. # 86). 9 10 B. Legal Argument

Defendant is already in custody on the instant offense, and exoneration of the bond will not

11 change her status. Furthermore, exoneration of the bond is inconsistent with Fed. R. Crim. P. 12 46(e) and (f)(1), which carries a presumption of forfeiture if defendant breaches any condition 13 of bond. In the instant case, defendant breached the bond condition through the commission of 14 a new alien smuggling offense. The government will file contemporaneously a motion to forfeit 15 bond. 16 17 18 19 20 21 22 23 CERTIFICATE OF SERVICE Respectfully submitted this 19th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Gary Restaino GARY M. RESTAINO Assistant U.S. Attorney

I hereby certify that on the above date, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of 24 Electronic Filing to the following CM/ECF registrants: Charles Thomas. 25 26 27 28
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Case 2:04-cr-01086-EHC

Document 90

Filed 12/19/2005

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