Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-CR-403-B UNITED STATES OF AMERICA, Plaintiff, v. 5. JOSE ALFREDO ZAPATA, Defendant. _________________________________________________________________ GOVERNMENT'S RESPONSE TO DEFENDANT JOSE ALFREDO ZAPATA'S RENEWED MOTION FOR RELEASE ON BOND (DOCKET NUMBER 605) AND NOW COMES THE UNITED STATES OF AMERICA, WILLIAM J. LEONE, UNITED STATES ATTORNEY, by Stephanie Podolak, Assistant U.S. Attorney, and files this response to defendant JOSE ALFREDO ZAPATA'S Renewed Motion for Release On Bond (filed at Docket Number 605). For the following reasons, the renewed motion for

bond should be denied. FACTS AND PROCEDURAL HISTORY 1. Hearing Before The United States Magistrate Judge In Texas On September 7, 2004, following a lengthy factual hearing, United States Magistrate Judge Michael McDonald, sitting in the Western District of Texas, found that there were no combinations or conditions which would insure the defendant's presence at Court or the safety of the community. The government

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summarized all the factors weighing against bond during oral argument on September 7, 2005. A copy of the transcript was made

a part of the record in this case and was attached to the Government's Response to the defendant's Motion For Release Pending Trial which can be found at Docket Number 496. In short, with respect to strength of evidence in the case, the government presented evidence, through the testimony of FBI Special Agent Dave Brundage, that the defendant JOSE ALFREDO ZAPATA was a member of a large-scale, family operated, international, cocaine smuggling and distribution operation (the "TARGET ORGANIZATION"). The organization itself dealt in

quantities well over 100 kilograms and the government seized more than 45 kilograms of cocaine during the course of the investigation. The proof showed that the defendant JOSE ALFREDO ZAPATA and his brother ARNOLDO ZAPATA, both resided in El Paso, Texas, and were responsible for receiving multiple kilogram shipments of cocaine from Mexico and secreting the narcotics inside spare tires of load vehicles. The evidence derived from wiretaps revealed that JOSE ALFREDO ZAPATA was involved in at least two separate shipments. Each shipments involved two vehicles with each vehicle containing 8 to 9 kilograms apiece. In addition, wiretap conversations

revealed that the defendant and his brother received large

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shipments of bulk cash from members of the ZAPATA-HERNANDEZ drug organization to pay for additional quantities of cocaine. The wiretap further revealed that JOSE ALFREDO ZAPATA and CARLOS ZAPATA-HERNANDEZ discussed who would be transporting the drugs, the price per kilograms, the location of stash houses in Denver and the location of and transportation of money derived from the sale of narcotics. Surveillance also demonstrated that JOSE ALFREDO ZAPATA's son, RAMON ZAPATA, was directly involved in the transportation of one of the shipments from El Paso to Denver. RAMON ZAPATA and other members of the ZAPATA-HERNANDEZ family were seen offloading the spare tires and removing the cocaine from the compartments. The wiretaps also tied the defendant

directly to a seizure of 8 kilograms of cocaine which took place in August 2004 from HUMBERTO GALVAN and LILIAN GALVAN. The evidence presented also showed that the defendant has a prior drug conviction for possession of marijuana in El Paso, Texas. The defendant was sentenced to 10 years probation.

Therefore, the defendant is subject to the sentencing enhancements of Title 21, U.S.C. §851 and facing a mandatory minimum term of 20 years. In sum, the evidence against the defendant is very strong and the quantity of drugs involved, the additional enhancements for role in the offense, and the Statutory Mandatory

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Minimum create a potential sentencing range of not less than twenty years and up to 360 months in jail. In terms of risk of flight and danger to the community, JOSE ALFREDO ZAPATA is not a citizen of the United States. Therefore, he will likely be deported to Mexico if convicted of the crimes charged in this indictment. The defendant and his immediate family reside in El Paso, Texas, and the defendant has no ties to the District of Colorado. A majority of the defendant's extended family are under arrest as part of this case. Therefore, the ties to the Denver

community are small and the risk of flight is great. 2. Hearing Before Chief Judge Babcock On October 19, 2005, the defendant filed a motion before Chief United States District Judge Louis T. Babcock. That

motion can be found at Docket Number at 409 and the Government's Response is at Docket Number 503. held on November 8, 2005. A hearing on that motion was

At that hearing, the Court noted that

there is a BICE detainer on the defendant making him ineligible for bond. The Court did not rule on the merits of the Magistrate

Court's finding as it related to the defendant's request for bond. 3. The Order from this hearing is at Docket Number 516. The Defendant's Current Motion The defendant's renewed motion now argues that claims that the defendant's family has hired an attorney named Sandra

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Saltrese to review the issue of detainer and deportation and that Ms. Saltrese has "confirmed that if the defendant is given bond in this case he will most likely be released on the detainer and will not be deported." Ms. Saltrese's opinion is based on a The government

conversation with an unknown, unnamed BICE agent.

has not, therefore, been able to confirm this conversation. Moreover, it is the government's impression that the defendant would have a hearing before the immigration court and that only the Court could release the detainer. In any event, even Ms.

Saltrese notes that there is no guarantee that Mr. Zapata will be released from immigration custody if a bond is granted in this case. Ms. Saltrese is also under the impression that the basis for the detainer is the pending drug charge. It is the

government's understanding that the detainer is based on the fact that the defendant should have been deported as the result of a prior drug conviction for possession of marijuana in El Paso, Texas. Thus, it is not clear whether the opinion she received

from the BICE agent was based on accurate facts. What is certain is that the BICE detainer remains in place. Judge Babcock's order specifically states that until such time as the order is "removed or otherwise taken care of" there should be no renewed hearing on bond. The defendant has not met

the conditions set by Judge Babcock for a renewed hearing and the motion for bond should not be considered. 5

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In the event that the Magistrate does view the BICE issue as resolved, the government would object to any further hearing before the Magistrate on the merits of the case. The

defendant has already had a hearing at the Magistrate level and the correct line of appeal is to the District Court. WHEREFORE, the government respectfully requests that the defendant JOSE ALFREDO ZAPATA'S Renewed Motion for Release On Bond (filed at Docket Number 605) be denied. RESPECTFULLY SUBMITTED: WILLIAM J. LEONE UNITED STATES ATTORNEY DISTRICT OF COLORADO By: s/Stephanie Podolak Stephanie Podolak Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO. 80202 Telephone (303) 454-0309 Fax (303) 454-0401 [email protected] Attorney For Government

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CERTIFICATE OF SERVICE I hereby certify that on this 13th day of March 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT JOSE ALFREDO ZAPATA'S RENEWED MOTION FOR RELEASE ON BOND (DOCKET NUMBER 605) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard Banta [email protected]

s/Joyce Hegge JOYCE HEGGE Legal Assistant to Stephanie Podolak U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0106 Fax: (303) 454-0401 E-mail: [email protected]

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