Free Preliminary Revocation Hearing - District Court of Colorado - Colorado

Case 1:00-cr-00032-DBS

Document 107

Filed 04/17/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Gudrun J. Rice UNITED STATES OF AMERICA v. Daniel Marquez, Defendant Case Number: 00-cr-00032 - DBS ORDER OF DETENTION This matter was before the Court for a preliminary hearing and a detention hearing on supervised release violations on April 17, 2007. Michele Korver represented the government and Janine Yunker represented the Defendant, who was present. Defendant waived his right to a preliminary hearing. A detention hearing was not held because defendant does not contest the government' motion for detention at s this time. In order to sustain a motion for detention on charges of violations of conditions of supervised release or probation after conviction, the Bail Reform Act (" Act" the ) requires detention if there is probable cause to believe that the person has committed a Federal, State, or local crime while on release, or if there is a finding by clear and convincing evidence that the defendant has violated any other condition of release or if there is a finding, by a preponderance of the evidence, that there is no condition or combination of conditions that will assure that the person will not flee or pose a danger to the community under §3142(g) of the Act or that the person is unlikely to abide by any condition or combination of conditions of release. See 18 U.S.C. §3148 (b). Under Rule 32.1 of the Federal Rules of Criminal Procedure, the court " may release or detain the [defendant] under 18 U.S.C. § 3143(a) pending further proceedings." The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the defendant. See Rule 32.1(a)(6). Defendant was placed on supervision by the Honorable Daniel B. Sparr, sitting in the court at Denver, Colorado on the 27th day of February, 2001, who fixed the period of supervision at three (3) years, commencing on June 28, 2005. Defendant has been charged with violating the terms and conditions of his supervised release. Particularly, defendant is charged with: 1) failing to report to his probation officer on March 1, 2007 at 8:00 am as directed; 2) failing to submit written reports within the first five days of each month, for the months of September, October, November and December 2006 and January and February 2007; 3) failing to work regularly, the allegation being that the defendant has not worked since December 15,

Case 1:00-cr-00032-DBS

Document 107

Filed 04/17/2007

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2006 and was not excused from work by his probation officer; 4) failing to notify the probation officer of a change in his employment; 5) failing to participate in drug treatment as directed by his probation officer by failing to keep counseling appointments at Correctional Management, Inc. (CMI), all in violation of defendant' s terms of supervised release. See Petition and Attachment thereto, filed on March 9, 2007. The Bail Reform Act, at 18 U.S.C. § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community: (1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence against the person; the history and characteristics of the person, including ­ (A) the person' character, physical and mental condition, family ties, s 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

(2) (3)

(4)

the nature and seriousness of the danger to any person or the community that would be posed by the person' release. s

In making my findings of fact, I have considered defendant' position not to s contest detention, defendant' waiver of the preliminary hearing and also the s information in the petition on supervised release. Weighing the statutory factors set forth in the Bail Reform Act, I make the following findings of fact, conclusions of law, and order for detention. First, defendant is charged with violating the conditions of supervised release as described above. Second, I was not given any information, with regard to the petition on supervised release, about defendant' background or his characteristics as of the date s 2

Case 1:00-cr-00032-DBS

Document 107

Filed 04/17/2007

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of the alleged violations or as of the time of hearing on April 17, 2007. Third, I do not have any current information, with regard to the petition on supervised release, about defendant' criminal record, or about the nature of the s underlying conviction. As a result, after considering all of these factors, and particularly defendant' s waiver of preliminary hearing and his decision not to contest the government' s detention motion, I conclude, for purposes of this detention order only, that defendant has violated one or more of the conditions of supervised release. Defendant has not shown that there are conditions of release that will assure that he will not flee or pose a danger to the safety of any other person or the community and that he will abide by such conditions. Accordingly I am unable to find by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of the Act. Consequently, it is hereby concluded that the defendant is a flight risk and a danger to the public. For the reasons stated, it is hereby ORDERED that defendant is to be detained pending further proceedings. It is further ORDERED that defendant shall be committed to the custody of the Attorney General or his designee for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences, or being held in custody pending appeal. It is further ORDERED that defendant shall be afforded reasonable opportunity for private consultation with counsel. It is further ORDERED that upon an order of a court of the United States, or upon request of an attorney for the Government, the person in charge of the corrections facility in which the defendant is confined shall deliver the defendant to a United States Marshal for the purpose of an appearance in connection with any Court proceeding in this matter. Dated April 17, 2007. By the Court: s/Gudrun J Rice Gudrun J. Rice, Magistrate Judge

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