UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 18-cr-132 (TSC/GMH) ) DIONISIO GARCIA, ) ) Defendant. ) )

DETENTION MEMORANDUM

This matter comes before the Court upon the application of the United States that Defend-

ant, Dionisio Garcia, be detained pending trial pursuant to

. Defendant is charged

by indictment with one count of conspiracy to import 500 grams or more of cocaine from a foreign

country in violation of

. The Court held a detention hearing on May 9, 2018. At

the conclusion of that hearing and upon consideration of the proffers and arguments of counsel

and the entire record herein, the Court ordered Defendant held without bond. This memorandum

is submitted in compliance with the statutory obligation that “the judicial officer shall . . . include

written findings of fact and a written statement of the reasons for the detention.”

(i)(1).

FINDINGS OF FACT

At the detention hearing, the United States proceeded by proffer based on the indictment.

The defense offered no contrary evidence on the merits of the offense, but did provide, also by

proffer, additional information about the history and characteristics of Defendant. Accordingly,

the Court makes the following findings of fact. A. The Charged Offense

On April 28, 2018, Customs and Border Patrol agents assigned to the Cincinnati facility of

international shipping company DHL targeted a package sent from Colon, Panama, and addressed

to “Dylan Boyce” at an apartment on Kansas Avenue in the northwestern quandrant of the District

of Columbia. When agents opened the package, which, according to the shipping manifest,

contained documents, they discovered approximately 962 grams of a white powdery substance

that field-tested positive for cocaine.

Thereafter, on the morning of May 2, 2018, officers from Homeland Security

Investigations, working with other law enforcement, conducted a controlled delivery of the

package (from which the drugs had been replaced by a similar sham product) to the Kansas Avenue

address. When no one answered the door at either of the apartments at the address, an undercover

officer placed on the door of the apartment to which the package had been addressed a DHL tag

indicating an attempted delivery and including a contact number. Later that day, the undercover

officer received a call about the package from a person sounding like a Hispanic male, and the

officer arranged to redeliver the package to the Kansas Avenue address. When he returned to that

residence, Defendant was waiting for him in front, signed for the package using the name “Dilan,”

and took the package into the apartment to which it had been addressed. Approximately one

minute later, officers observed Defendant leave the apartment through the back door, place the

package into the trunk of a burgundy Honda Accord, and return to the apartment.

At approximately 3:30 p.m. that same day, law enforcement executed a search warrant at

the apartment. After waiving his Miranda rights, Defendant admitted that he had received the

package for another person who was supposed to pick the package up that evening. Defendant

2 was to receive $500 for his help. Defendant admitted that he expected the package would contain

something illegal, perhaps Ecstasy, and also that he had previously accepted a similar package for

the same person and received $300 as payment. In a search incident to Defendant’s arrest, law

enforcement found $1,185 in his pocket.

B. Defendant’s Characteristics and Criminal History

Defendant has no prior criminal history. He is a legal resident of the United States who

has lived in the D.C.-area for twenty-one years. He resides with his girlfriend of eight years in

Maryland and has two sons in the area. Although he has not had steady employment for the past

five months, Defendant asserts that prior to that he was gainfully employed for approximately

twenty-one years, most recently serving as an auto mechanic at a single establishment for fifteen

years.

LEGAL STANDARD

The Bail Reform Act of 1984,

et seq., provides, in pertinent part, that if

a judicial officer finds by clear and convincing evidence that “no condition or combination of

conditions will reasonably assure the appearance of the person as required and the safety of any

other person and the community, such judicial officer shall order the detention of the [defendant]

before trial.”

(e). Thus, even if a defendant is not considered a flight risk, his or

her danger to the community alone is sufficient reason to order pretrial detention, and vice versa.

United States v. Salerno,

(1987); United States v. Perry,

(3d

Cir. 1986); United States v. Sazenski,

(8th Cir. 1986). Where the judicial

officer’s justification for detention is premised upon the safety of the community, the decision

must be supported by “clear and convincing evidence.”

(f)(2). Where the

3 justification for detention is risk of flight, the decision must be supported by a preponderance of

the evidence. See United States v. Simpkins,

(D.C. Cir. 1987).

Section 3142 imposes a rebuttable presumption of dangerousness or flight risk on certain

defendants based on the crimes with which they are charged, their prior convictions, or similar

considerations. See

(e)(2), (3). For purposes of determining whether a rebuttable

presumption is triggered, “[a] grand jury indictment, by itself, establishes probable cause to believe

that a defendant committed the crime with which he is charged.” United States v. Stone,

(6th Cir. 2010); United States v. Smith,

(D.C. Cir. 1996) (“[T]he

indictment alone would have been enough to raise the rebuttable presumption that no condition

would reasonably assure the safety of the community.”). Here, Defendant was indicted under

for conspiracy to distribute at least 500 grams of cocaine, an offense for which the

maximum term of imprisonment is more than ten years. This offense triggers the rebuttable

presumption of section 3142(e)(3)(A), which provides that “[s]ubject to rebuttal by the person, it

shall be presumed that no condition or combination of conditions will reasonably assure [(1)] the

appearance of the person as required and [(2)] the safety of the community if the judicial officer

finds that there is probable cause to believe that the person committed . . . an offense for which a

maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances

Act.”

(e)(3)(A).

Once the rebuttable presumption is triggered, it “operate[s] at a minimum to impose a

burden of production on the defendant to offer some credible evidence contrary to the statutory

presumption.” See United States v. Alatishe,

(D.C. Cir. 1985). As this Court

has emphasized, “[w]hile the burden of production may not be heavy, the applicable cases all speak

4 in terms of a defendant’s obligation to introduce ‘evidence.’” United States v. Lee,

(D.D.C. July 1, 2016) (citations omitted). Thus, the defendant must offer not mere

speculation, but “at least some evidence,” or basis to conclude that the presumption has been

rebutted in his or her case. Stone, 608 F.3d at 945–46; Alatishe,

; see also United

States v. Taylor,

(D.D.C. 2018). Specifically, a defendant “should ‘present

all the special features of his case’ that take it outside ‘the congressional paradigm’” giving rise to

the presumption. Stone,

(quoting United States v. Jessup,

(1st

Cir. 1985)); see also United States v. Portes,

(7th Cir. 1985) (presumptions in

section 3142(e) “are ‘rebutted’ when the defendant meets a ‘burden of production’ by coming

forward with some evidence that he will not flee or endanger the community if released”).

That said, the burden of persuasion on the issue of detention remains, as always, with the

government. United States v. Mercedes,

(2d Cir. 2001). But even where the

defendant offers evidence to rebut the presumption, the presumption is not erased. It is “not a

‘bursting bubble’ that becomes devoid of all force once a defendant has met his burden of

production.” Taylor,

, at *4 (quoting Jessup,

). Rather, even

after the defendant carries his burden of production, the presumption “remains in the case as an

evidentiary finding militating against release, to be weighted along with other evidence relevant

to factors listed in § 3142(g).” United States v. Dominguez,

(7th Cir. 1986);

Taylor,

(“[T]he judicial officer must ‘keep in mind the fact that Congress

has found that’ those charged with the specified offenses are likely to pose a danger to the

community.” (quoting Jessup,

)); United States v. Ali,

(D.D.C. 2011).

5 ANALYSIS

A. Application of the Rebuttable Presumption

Defendant concedes that the rebuttable presumption in favor of pretrial detention pursuant

to

(e)(3)(A) applies here, but stresses that his strong ties to the community and

his non-existent criminal history are sufficient to meet his burden of production to rebut it.

Specifically, Defendant argues that he has been a legal resident of the D.C.-area for twenty-one

years without acquiring a criminal record. He notes that the current charges reflect a single

instance of receiving a package containing drugs, and there are no allegations of violence or

possession of weapons. He has ties to the community, evidenced by his living situation, his two

sons in the area, and the attendance of approximately fifteen friends at the detention hearing.

Although he has not had steady employment for the past five months, Defendant asserts that prior

to that he was gainfully employed for approximately twenty-one years, most recently serving as

an auto mechanic at a single establishment for fifteen years. In lieu of pretrial detention, Defendant

asks the Court to release him on conditions, including electronic monitoring and home detention.

This is a close case. Having heard the parties’ proffers, the Court finds that Defendant

has rebutted the presumption that he is a flight risk. Defendant is a legal resident who has lived

in the area for more than two decades. He has ties to the community, including a girlfriend and

two children, and has a history of gainful employment. However, Defendant has failed to produce

at the hearing “some credible evidence contrary to the statutory presumption” of his dangerousness

were he to be released. Alatishe,

.

Congress has determined that individuals who, like Defendant, have been charged with

drug offenses carrying a maximum term of imprisonment of ten years or more presumptively pose

6 a danger to the community even if they do not have a criminal history. See United States v. Bess,

(D.D.C. 1988) (explaining that the presumption “represents Congress’s

general factual view about . . . the special risks of danger to the community presented by

defendants who commit the crimes to which it attaches”). Moreover, the weight of the evidence

is strong that Defendant conspired with another to import a significant amount of cocaine for

distribution. He was discovered with the package containing almost one kilogram of cocaine and

admitted to having engaged in a similar scheme on a prior occasion—although the contents of that

package are presently unknown. “The distribution of large quantities of narcotics into the

community poses a significant danger to communal safety.” United States v. Holroyd, No. CR 17-

234-2 (TNM),

, at *3 (D.D.C. Jan. 4, 2018). Given the manner in which

Defendant received the drugs—by accepting a package mailed from Panama to a D.C.-area

address—it would be difficult to fashion conditions of release that would prevent him from

committing further similar offenses. Finally, the probative value of Defendant’s evidence

concerning his ties to the community and his previously law-abiding life is limited because “this

evidence would equally tend to suggest that Defendant would never have committed the crime

with which he is now charged.” United States v. Bess,

(D.D.C. 1988) (“The

history and characteristics of Defendant—his family and community ties, his educational and

employment record, and his lack of prior convictions as an adult—did not deter him from

committing armed robbery in the first instance . . . .”).

B. Application of the Section 3142(g) Factors

Had Defendant fully rebutted the presumption in favor of his detention, and the Court were

to consider the Bail Reform Act’s four section 3142(g) factors, it would again be a close call, but

7 the conclusion would ultimately be the same: Defendant should be held without bond pending

trial. The four factors that must be considered in making a bond determination are: (1) the nature

and circumstances of the offense; (2) the weight of the evidence against the defendant; (3) the

history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any

person or the community that would be posed by the defendant’s release.

(g).

Further, where, as here, a rebuttable presumption applies, it “remains in the case as an evidentiary

finding militating against release, to be weighted along with other evidence relevant to factors

listed in § 3142(g),” even if the defendant has met his or her burden of production of offering some

credible evidence to the contrary. Dominguez,

; Taylor,

; Ali,

.

1. Nature and Circumstances of the Charged Offense

The first factor, the nature and circumstances of the charged offense, favors detention. This

factor asks the Court to consider “the nature and circumstances of the offense charged” as a general

matter, but points especially to instances where “the offense is a crime of violence . . . or involves

a controlled substance, firearm, explosive, or destructive device.”

(g)(1). Here,

the indictment and the government’s proffer establish probable cause to believe Defendant

engaged in a drug trafficking offense involving cocaine in an amount that the grand jury found

was consistent with intent to distribute the drug. Defendant’s own statements indicate he expected

that the package he received would include narcotics and that he had previously agreed to accept

a package likely to contain narcotics for payment. Defendant was also found with over $1,000

cash in his pocket, notwithstanding the fact that he is currently unemployed. That is, the evidence

indicates that Defendant was no unwilling dupe; he was a knowing participant in a drug conspiracy.

8 2. The Weight of the Evidence

The weight of the evidence against Defendant is strong and also favors detention. As

outlined above, law enforcement witnessed Defendant receive the package of drugs and put it in

the trunk of a car from which it was later recovered. And Defendant admitted he believed that the

package contained narcotics.

3. The History and Characteristics of Defendant

Section 3142(g)(3) directs the Court to consider: (1) the defendant’s character, physical

and mental condition, family ties, 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 (2) whether, at the time of the

current offense or arrest, the defendant 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.

(g)(3)(A)–(B).

This factor does not weigh strongly in favor of detention. As discussed above, Defendant

has no prior criminal record, has lived in the community for over two decades, and has apparently

strong ties to the community. To be sure, he has been unemployed for the past months, but his

employment record prior to that period is steady. The primary counterweight to that history is the

conduct for which he is charged, which Congress has found poses “special risks” to the

community. See Bess,

(finding that presumption “represents Congress’s

general factual view about the special flight risks and the special risks of danger to the community

presented by defendants who commit the crimes to which it attaches”). But although this factor

may not firmly indicate that Defendant should be detained, it does not compensate for the other §

9 3142(g) factors, which do counsel in favor of detention.

4. The Danger to the Community

The fourth factor, the danger to the community posed by Defendant were he to be released,

also weighs in favor of detention. There is probable cause to believe that defendant received nearly

one kilogram of cocaine as part of a conspiracy to distribute the drug. The danger to the

community posed by this conduct is discussed above and requires no further explanation here.

For these reasons, the Court does not have confidence that, if released, Defendant would

not continue to engage in criminal activity. The undersigned therefore finds that there is no

condition or combination of conditions that would keep the community safe if Defendant were

released.

CONCLUSION

Based on the consideration of all the evidence, the factors set forth in section 3142(g), and

all lesser restrictive alternatives to pretrial detention, the Court finds by clear and convincing

evidence that no condition or combination of conditions exist that would reasonably assure the

safety of any other person or of the community if Defendant was released. Therefore, the

government’s motion for pretrial detention is GRANTED.

DIRECTIONS REGARDING DETENTION

Defendant is ORDERED remanded to the custody of the Attorney General or to the

Attorney General’s designated representative for confinement in a corrections facility separate, to

the extent practicable, from persons awaiting or serving sentences or being held in custody pending

appeal. Defendant must be afforded reasonable opportunity for private consultation with defense

counsel. On order of a court of the United States or on request of an attorney for the government,

10 the person in charge of the corrections facility must deliver Defendant to a United States Marshal

for the purpose of an appearance in connection with a court proceeding. G. Michael Harvey 2018.05.10 17:22:04 Date: May 10, 2018 -04'00' ___________________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

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