United States District Court, D. Massachusetts
ORDER ON MOTION FOR REVIEW AND REVOCATION BY THE
DISTRICT COURT OF THE MAGISTRATE JUDGE'S DETENTION ORDER
(DOC. NO. 13)
Leo T.
Soroki, n United States District Judge.
Defendant
Luis Berroa was arrested on March 13, 2019, based on probable
cause. Doc. No. 1-1 at 2-3. A criminal complaint against Mr.
Berroa was sworn on the same day. Id. at 1. A
hearing on detention and probable cause was held before
Magistrate Judge Dein on March 19, 2019. Doc. No. 11.
At the
hearing, over the defendant's objection, Judge Dein found
that the charge, possession with intent to distribute
fentanyl in violation of 21 U.S.C. § 841(a)(1), was
supported by probable cause. Doc. No. 10 at 3. In a written
order after the hearing, she further found that the
rebuttable presumption that no condition or combination of
conditions would reasonably assure the appearance of the
defendant and the safety of the community applied because the
charge carries a maximum term of imprisonment of 10 years or
more. See id. at 2; 18 U.S.C. § 3142(e)(3).
Although she found the record evidence sufficient to rebut
that presumption, Judge Dein also found that the government
had proven by clear and convincing evidence that no condition
or combination of conditions could reasonably assure the
safety of any other person and the community and by a
preponderance of the evidence that no condition or
combination of conditions could reasonably assure Mr.
Berroa's appearance at trial. Doc. No. 10 at 2.
Accordingly, Judge Dein ordered the defendant detained
pending trial. Id. at 2. Mr. Berroa now appeals that
decision, Doc. No. 13, which this Court reviews de novo,
United States v. Tortora, 922 F.2d 880, 883 n.4 (1st
Cir. 1990).
The
Court has carefully reviewed the facts set forth in Judge
Dein's Order, the transcript of the detention hearing,
the pretrial services report, the two supplemental memoranda
prepared by pretrial services, the exhibit introduced by Mr.
Berroa at the detention hearing, and the materials submitted
with Mr. Berroa's motion. That the drugs and firearms
were found in the bedroom of Mr. Berroa, is not challenged
for this appeal, nor has defendant requested another
evidentiary hearing. See Doc. No. 13. Mr. Berroa
does not propose conditions of release in addition to or
different than those discussed before Judge Dein.
Id. Although the Court agrees that Mr. Berroa set
forth evidence sufficient to rebut the presumption that no
condition or combination of conditions would reasonably
assure the appearance of the defendant and the safety of the
community, that conclusion does not end the presumption's
applicability. “[A]fter a defendant has introduced some
evidence to rebut the flight presumption, the presumption
does not disappear, but rather retains evidentiary weight . .
. to be considered along with all the other relevant
factors.” United States v. Palmer-Contreras,
835 F.2d 15, 18 (1st Cir. 1987). The Court therefore
considers Mr. Berroa's motion with the presumption in
mind.
The
Court first considers whether conditions of release exist
that could reasonably assure Mr. Berroa's appearance if
released. See 18 U.S.C. § 3142(e)(1). The Court
draws the inference that the presence of drugs and guns in
Mr. Berroa's apartment is reasonably strong evidence that
the items were his. Because the complaint against Mr. Berroa
alleges that he possessed 50 grams of fentanyl, see
Doc. No. 1-1 at 2, he faces a mandatory minimum sentence of
five years of imprisonment, see 21 U.S.C. §
841(b)(1)(B)(vi). Because the complaint also alleges that he
possessed two firearms, see Doc. No. 1-1 at 3, and
the government expressed an intention at the hearing before
Judge Dein to add charges under 18 U.S.C. § 924(c), Mr.
Berroa faces an additional mandatory minimum sentence of five
years for each firearm, see 18 U.S.C. §
924(c)(1)(A)(i).[1] Although Mr. Berroa has significant ties
in Massachusetts and to the United States, he also has ties
to the Dominican Republic, to which he travels regularly. In
combination with the length of the sentence Mr. Berroa may
face in this matter, including a potential mandatory minimum
of fifteen years, these ties abroad create a substantial
incentive to flee. The Court therefore finds that the
government has met its burden of demonstrating by a
preponderance of the evidence that no condition or
combination of conditions could reasonably assure Mr.
Berroa's appearance when required. The Court makes this
finding even without consideration of the presumption.
Further,
given the nature of the crime with which Mr. Berroa is
charged, the Court finds that the government has shown by
clear and convincing evidence that no condition or
combination of conditions could reasonably assure the
community's safety. The evidence at this stage of the
case demonstrates that Mr. Berroa possessed, in his bedroom
in his apartment, substantial quantities of fentanyl, two
firearms, and ammunition for one of the firearms. Considering
the totality of the evidence before the Court including Mr.
Berroa's absence of a criminal work and the evidence
offered of legitimate income and work, the United States has
met its burden of proof.
Accordingly,
the Court OVERRULES Mr. Berroa's objections, Doc. No. 13,
to Judge Dein's Order of Detention, Doc. No. 10. The
Order of Detention is AFFIRMED.
SO
ORDERED.
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Notes:
[1] Although the existing complaint, Doc.
No. 1, does not include these charges, they are supported by
evidence, and the government informed Mr. Berroa that he will
likely face them. Accordingly, they are relevant to the
Court's inquiry into the ...