Free Order of Detention - District Court of Delaware - Delaware

Case 1 :08-cr-00106-GIVIS Document 7 Filed 06/27/2008 Page 1 of 2
Q AO 472 (Rev. I2/03) Order ofDetention Pending Trial
District of DELAWARE
UNITED STATES OF AMERICA
V. ORDER OF DETENTION PENDING TRIAL
NELSON AVILES, Case Number: 08-I I l-M
Defendant
In accordance with the Bail Reform Act, I8 U.S.C. § 3l42(f), a detention hearing has been held. l conclude that the following facts require the
detention ofthe defendant pending trial in this case.
Part I-·-Findings of Fact
Q (I) The defendant is charged with an offense described in IS U.S.C. § 3 l42(f)(l) and has been convicted ofa Q federal offense Q state
or local offense that would have been a federal offense if a circumstance giving rise to federal jurisdiction had existed - that is
Q a crime ofviolence as defined in 18 U.S.C. § 3l56(a)(4).
Q an offense for which the maximum sentence is life imprisonment or death.
Q an offense for which a maximum term of imprisonment often years or more is prescribed in
4-
Q a felony that was committed after the defendant had been convicted of two or more prior federal offenses described in 18 U.S.C.
§ 3 l42(f`)(l)(A)-(C), or comparable state or local offenses.
Q (2) The offense described in finding (I) was committed while the defendant was on release pending trial for a federal, state or local offense.
Q (3) A period of not more than five years has elapsed since the Q date of conviction Q release ofthe defendant from imprisonment
for the offense described in finding (I).
Q (4) Findings Nos. (I), (2) and (3) establish a rebuttable presumption that no condition or combination of conditions will reasonably assure the
safety of (an) other person(s) and the community. I further find that the defendant has not rebutted this presumption.
Alternative Findings (A)
Q (I) There is probable cause to believe that the defendant has committed an offense
Q for which a maximum term of imprisonment of ten years or more is prescribed in .
Q under IS U.S.C. § 924(cz).
Q (2) The defendant has not rebutted the presumption established by finding 1 that no condition or combination ofconditions will reasonably assure
the appearance of the defendant as required and the safety ofthe community.
Alternative Findings (B)
X (1) There is a serious risk that the defendant will not appear.
X (2) There is a serious risk that the defendant will endanger the safety of another person or the community.
Part II—Written Statement of Reasons for Detention
I find that the credible testimony and infomation submitted at the hearing establishes by X clear and convincing evidence X a prepon-
derance of the evidence that
Based on the affidavit of probable cause, the report of the Probation Office, and other information provided to the Court during the detention
hearing, the Court finds clear and convincing evidence that no combination of conditions could reasonably assure the safety of the community
between now and the time of the Defendant’s trial. The Court further finds that no combination of conditions could reasonably assure that the
Defendant would appear for all Court events in this matter.
The Court has reached these conclusions based on the following findings and for the following reasons, as well as those stated from the bench
at the conclusion of the detention hearing:
the nature and circumstances of the offense: the Defendant is accused of being a felon in possession of a firearm. Law enforcement observed
Defendant driving a car. When the car was stopped, they found a loaded gun under the driver’s seat. The other occupant of the vehicle
disclaimed any knowledge ofthe gun. Defendant later gave a statement acknowledging that the gun belonged to him (i.e. to Defendant). The
firearm, a Bersa .380 caliber semi—automatic handgun, was not manufactured in Delaware. Defendant has prior felony convictions: Possession
with Intent to Deliver Cocaine in l989 and Trafficking Cocaine in 1992.
the weight ofthe evidence: is very strong. In addition to law enforcement finding the loaded gun under the scat in which they had observed
Defendant sitting immediately before, Defendant also admitted the recovered gun belonged to him. There is no dispute that the firearm
traveled in interstate commerce and that the Defendant was a person prohibited.
the histog and characteristics of the Defendant: as already noted, the Defendant has two prior convictions, both for drug distribution. These
offenses, however, are relatively old. The only criminal conviction in Defendant‘s recent past is a May 2007 charge of criminal impersonation
and possession or consumption of alcohol in a state park. His record shows that he has used several different names and five different dates of

Case 1 :08-cr-00106-GIVIS Document 7 Filed 06/27/2008 Page 2 of 2
% AO 472 (Rev. 12/03) Order of Detention Pending Trial
birth. He has one criminal failure to appear in 1989 and three recent capiases (200] and 2007) for failure to appear for child support
hearings. Defendant has the benefit of the support of his wife and employer, both of whom attended the detention hearing. Weighing against
Defendant, is his heroin use, which he started about three years ago, and which makes it difficult for the Court to be confident he could and
would comply with all release conditions and appear for all future proceedings.
the nature and seriousness of the danger to the communig that would be posed by the Defendant’s releasezas a felon in possession of a firearm,
who was driving around Wilmington with a loaded gun in his car, who was previously convicted oftwo drug distribution felonies, and who
uses and perhaps abuses heroin, Defendant would pose a danger to the community if released.
Part IIl—Directions Regarding Detention
The defendant is committed to the custody ofthe Attomey General or his designated representative for confinement in a corrections facility separate,
to the extent practicable, from persons awaiting or sewing sentences or being held in custody pending appeal. The defendant shall be afforded a
reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attomey for the
Government, the person in charge of the corrections facility shall deliver the defendant othe United States marshal for the purpose of an appearance
in connection with a court proceeding. { E
JUNE 27m, 2008 “
Date S rgnature offudge
Hon. Leonard P. Stark
Name and Title of Judge
*Insert as applicable: (a) Controlled Substances Act (21 U.S.C. § 801 et seq.); (b) Controlled Substances Import and Export Act (2l U.S.C. § 95l
er seq.); or (c) Section I ot"Act of Sept. 15, l980 (21 U.S.C. § 955a).

Case 1:08-cr-00106-GMS

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Case 1:08-cr-00106-GMS

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