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United States v. Farinha

United States District Court, Ninth Circuit

December 12, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY RICARDO FARINHA, Defendant.

ORDER DENYING DEFENDANT'S MOTION TO REVOKE DETENTION ORDER

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on defendant's "Motion for Review and Revocation of Detention Order" (Dkt. # 43). The defendant asks this Court to reverse the detention order issued by the Honorable Brian A. Tsuchida, United States Magistrate Judge. See Dkt. # 17. For the reasons set forth below, the Court finds that no condition or combination of conditions will reasonably assure the appearance of defendant as required. Therefore, the Court DENIES the defendant's motion and orders defendant be detained pending trial.

BACKGROUND

On March 12, 2009, a grand jury indicted Mr. Farinha on a charge of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), as well as a charge of conspiracy to export cocaine in violation of 21 U.S.C. § 953(a), 960(a)(1), 960(b)(1)(B), and 963. Dkt. # 1. Mr. Farinha is a Canadian citizen. See Dkt. # 10 at 3. After three years of extradition proceedings in Canada, defendant exhausted all appeals, was taken into custody by Canadian law enforcement, and was surrendered to United States agents on July 2, 2013. Id . Once in this district, Magistrate Judge Tsuchida ordered Mr. Farinha detained pending trial at a hearing on July 23, 2013, despite Pretrial Services' recommendation for release with conditions. Dkt. # 17. Judge Tsuchida found no conditions of release that would reasonably assure the appearance of the defendant as he is a Canadian citizen with no ties to the community and great incentive to flee. Id.

Mr. Farinha filed a motion to reopen his detention hearing on October 25, 2013. Dkt. # 36. Mr. Farinha argued that his detention hearing should be reopened because he did not have an opportunity to confront the government's allegations that he lied in order to evade extradition. Id . Judge Tsuchida denied the motion to reopen the detention hearing based on the record that showed that Mr. Farinha "claimed to be an informant who could not be extradited." Dkt. # 42 at 1.

On November 8, 2013, Mr. Farinha filed a motion to revoke his detention order. Dkt. # 43. Mr. Farinha argues that he did not have an opportunity to rebut allegations that he had made false statements in extradition proceedings, and accordingly, he requests that the detention order be revoked. Id.

DISCUSSION

I. Standard of Review

The Court reviews the pretrial detention order of a magistrate judge de novo. United States v. Koenig , 912 F.2d 1190, 1191 (9th Cir. 1990). Although the Court considers the evidence presented to the magistrate judge, it accords no deference to the magistrate judge's findings of fact and ultimate conclusion. Id. at 1193.

II. Bail Reform Act

The Bail Reform Act requires a court to order detention of a person pending trial upon finding, "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...." 18 U.S.C. § 3142(e). To prevent a defendant's release, the government must prove that a defendant is a danger to the community by clear and convincing evidence, or it must prove that a defendant is a flight risk by a clear preponderance of the evidence. United States v. Motamedi , 767 F.2d 1403, 1406 (9th Cir. 1985).

Pretrial detention should only be granted "in rare circumstances... and any doubts regarding the propriety of release should be resolved in the defendant's favor." United States v. Gebro , 948 F.2d 1118, 1121 (9th Cir. 1991). The Court may impose conditions that it deems necessary to guard against a defendant's flight or danger to the community. See 18 U.S.C. § 3142(c). In deciding whether conditions could reasonably assure the defendant's appearance and the safety of the community, the Court evaluates four factors: "(1) the nature and circumstances of the offense charged...; (2) the weight of the evidence against the person; (3) the history and characteristics of the person...; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g).

Section 3142(e) provides that a rebuttable presumption against pretrial release exists when a court finds probable cause that the defendant committed an offense under 21 U.S.C. § 841. See 18 U.S.C. § 3142(e)(3)(A)-(B). For purposes of § 3142(e), an indictment by a grand jury establishes probable cause triggering the presumption. See United States v. Ward , 63. F.Supp.2d 1203, 1209 (C.D. Cal. 1999). In order to rebut the presumption, the defendant must produce evidence that he does not pose a danger to the community or a risk of flight. United States v. Abad , 350 F.3d 793, 797 (8th Cir. 2003). Although the presumption ...


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