UNITED STATES OF AMERICA v. IRMA ZAMORANO
Criminal Case No. 19-cr-531-WJM
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
May 15, 2020
ECF Document 44
Thе Government charges Defendant Irma Zamorano with one count of possessing with intent to distribute 500 grams and more of a mixture and substance containing a detectable amount of methamphetamine, in violation of
No hearing is necessary to resolve these motions. For the reasons explained below, the Court finds that Zamorano‘s detention continues to be appropriate and the
I. DETENTION PRESUMPTIONS & STANDARD OF REVIEW
A. Initial Standard
The Court “shall order the detention of the [defendant] before trial” if the Court finds, after a hearing, “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.”
“Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant‘s burden of production is not heavy, but some evidence must be produced.” United States v. Stricklin, 932 F.2d 1353, 1354–55 (10th Cir. 1991).
“The facts the judicial officer uses to support a finding . . . that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.”
The factors the Court “shall” consider when deciding whether to grant pretrial release are:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591 [sex trafficking of minors], a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person‘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
(B) whether, at the time of the current offense or arrest, the person 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; and
(4) the nature and seriousness of the danger to any persоn or the community that would be posed by the person‘s release.
B. Reopening
If the judicial officer detains the defendant, the defendant may ask the judicial officer to revisit that conclusion under certain circumstances.
First, the defendаnt can argue that relevant information, not previously known,
The [detention] hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.
Second, the defendant may argue that preparation of a defense or other “compelling” circumstances justify “temporary release“:
The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person‘s defense or for another compelling reason.
C. Review
“If a person is ordered detained by a magistrate judge, . . . the person may file, with the [district court], a motion for revocation or amendment of the order.”
De novo review, however, does not necessarily mean holding an evidentiary hearing. Although a district court may start from scratch and take evidence, it may also review the evidence that was before the magistrate judge and make its own independent determination as to whether the magistrate judge‘s findings and detention order are correct. This is a matter of discretion for the district court.
United States v. Romero, 2010 WL 11523871, at *2 (D. Colo. May 17, 2010) (internal quotation marks and citations omitted).
On December 5, 2019, the Colorado State Patrol, acting on a tip about a narcotics shipment from California to Minnesota, pulled over a car with four adult occupants and two juveniles. (ECF No. 35 at 2.) A search of the car yielded 40.7 pounds of methamphetamine. (Id.) Zamorano, after being read her Miranda rights, took responsibility for the drugs, claiming that the other occupants of the car—her partner, her daughter and son-in-law, and two grandchildren—had no knowledge of them. (Id. at 2–3.)
On December 11, 2019, Judge Crews held a detention hearing and concluded that pretrial release was inappropriаte because the weight of the evidence against Zamorano was strong, she is subject to a lengthy period of imprisonment if convicted (i.e., a ten-year mandatory minimum), she lacks stable employment, she has no residence, community ties, or family ties in this judicial district (she lives in California), she has significant family ties outside the United States, she lacks legal status in the United States, and her background information was unknown or unverified. (ECF No. 11 at 2-3.) Specifically аs to Zamorano‘s proposal that she return to California to live with her daughter pending trial, the information before Judge Crews about that possibility was sketchy and Judge Crews was less than convinced that the daughter had no role in or knowledge of transporting 40.7 pounds of methamphetamine. (ECF No. 35 at 3–4.) Thus, Judge Crews ordered that Zamorano remain detained pending trial. Zamorano did not challenge that order.
As is well-known, COVID-19 became a worldwide pandemic in the last few of months, with the effects in Colorado becoming especially acute beginning in mid-March 2020. On April 2, 2020, Zamorano moved for reconsideration of her detention, arguing
Finally, Zamorano argued that the
Judge Crews rejected these arguments. First addressing the “compelling reason” prong of
As for Zamorano‘s concerns about assistance of counsel, Judge Crews found “[t]here is simply no evidence that the temporary limitations on attorney communications . . . have caused counsel‘s performance to fall below an objective standard of reasonableness.” (Id. at 10.)
Judge Crews treated Zamorano‘s proposed re-weighing of the
For these reasons, Judge Crews concluded, for the second time, that Zamorano
III. ANALYSIS
Zamorano‘s Motion to Revoke largely re-urges her arguments made to Judge Crews, still emphasizing
Section 3142(i) presumes that a person is properly detained under
A. Section 3142(g)
1. Risk of Flight
Invoking
The Court gives these considerations little weight. Many people are avoiding travel, but the Court has seen no evidence that “travel is severely restricted.” Zamorano points to no instance of anyone‘s travel in California being restricted to this degree, e.g., being pulled over on suspicion of traveling for a purpose unapproved by a relevant stay-at-home order, or being cited for visiting someone else‘s home. As for Zamorano‘s higher risk of serious illness, thе Court frankly cannot trust Zamorano to make good risk-based decisions. If everything in her confession is true, then she knowingly invited her unwitting partner, daughter, son-in-law, and two grandchildren to accompany her on a long road trip to deliver almost 41 pounds of methamphetamine. That course of conduct alone demonstrates a high tolerance for putting herself and others at risk.
Zamorano also re-emphasizes her proposеd living arrangements with her daughter or with her partner, either of which allegedly make her less of a flight risk. (ECF No. 39 at 12–13.) The Court agrees with Judge Crews, however, that this is not information “that was not known to the movant at the time of the [December 2019 detention] hearing.”
Even if the Court were to consider this supposedly new information, the Court is not convinced that Zamorano would not be a flight risk. Zamorano‘s arguments appear to presume that COVID-19 gives her a strong incentive to stay put. Indeed it does—but not necessarily in her daughter‘s or partner‘s residence.
The question before the Court is not whether Zamorano will “flee” (in the colloquial sense of rapidly moving from place to place to evade law enforcement), but
The Court also concurs with Judge Crews‘s initial assessment that Zamorano‘s daughter‘s and partner‘s alleged lack of knowledge about the methamphetamine in the car somewhat strains credulity. The Court therefоre has reason to distrust her daughter and her partner, and therefore reason not to appoint either one as her custodian.
For these reasons, the Court finds that a preponderance of evidence still exists “that no condition or combination of conditions will reasonably assure the appearance of the person as required.”
2. Community Danger
Given the foregoing, detention is required and the Court need not analyze сommunity danger. Nonetheless, the Court notes the following.
First, Zamorano claims that she “does not pose a danger to the community such that releasing her would be more dangerous than keeping her detained where she is exposed to significant danger.” (ECF No. 39 at 14.) But comparative danger—i.e., danger to the community if released versus danger to the defendant if confined—is not a
Second, Zamorano obtained 41 pounds of methamphetamine from someone in California. There is no reason to believe that she could not, upon her return to California, reconnect with her drug source(s), thus furthering the distribution of this highly dangerous controlled substance.
B. Section 3142(i)
Having found that Zamorano must be detained, the Court may now evaluate whether it will nonetheless “permit [her] temporary release” because it is “necessary for preparation of [her] defense or for another compelling reason.”
Regarding preparation of a defense, Zamorano‘s counsel represents that she cannot visit Zamorano in Jeffco due to jail restrictions on in-person visits,1 and that “technological alternatives to in-person meetings, such as FaceTime and Zoom, are not available to Ms. Zamorano [in Jeffco].” (ECF No. 39 at 10.) This ignores the most obvious technological alternative to an in-person meeting: the telephone.
As to that, counsel states (for the first time in the reply brief) that Jeffco “is currently inundated with requests for legal calls and [is] unable to timely facilitate all of those requests.” (ECF No. 42 at 3–4.) The Court is confident that the same would be true for video communication, such as through FaceTime or Zoom. And in any event, it is an argument that counsels in favor of releasing all or most Jeffco detainees, because presumably all or most of them are experiencing the same problem. The Court is unwilling to countenance an argument which, if accepted, would effectively “open the doors” of a detention facility to all desiring to bring to an end their period of confinement at that location.2
Zamorano is 48 years old. Although the Court understands that there have been many COVID-19 hospitalizations of middle-aged persons such as Zamorano, the CDC‘s guidance continues to list age 65 as the threshold for “higher risk for severe illness,” at least based on age alone. See CDC, “People Who Are at Higher Risk for Severe Illness,” at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last accessed May 15, 2020) (“CDC Guidance“).
Zamorano is also 59” tall (i.e., 4‘11“) and weighs 226 lbs. (ECF No. 39-5 at 4.)4 Her body mass index is therefore 45.6, which is well above the BMI 30 threshold for obesity. Her doctor has noted her “morbid obesity.” (Id.) The CDC currently lists “severe obesity (body mass index [BMI] of 40 or higher)” as a risk factor regardless of age, “particularly if not well controlled.” CDC Guidance, supra. Zamorano‘s doctor says that Zamorano “is fairly healthy . . . except for problems with morbid obesity.” (ECF No.
Even so, if the Court were to order Zamorano‘s temporary release—either to facilitate her access to counsel by preventing her from having to use an unsanitized telephone, or because her susceptibility to a severe case of COVID-19 is “another compelling reason“—it may only order her release into “the custody of a United States marshal or another appropriate person.”
The only other proposed “appropriate person[(s)]” are Zamorano‘s daughter or partner. But “appropriate” surely implies that the person is capable of preventing the risk of flight and cоmmunity danger that justifies detention in the first place. For the reasons already explained above, Zamorano‘s daughter and partner (themselves, and by virtue of their location in California) fall far short of meeting this standard. Thus, the Court may not permit Zamorano‘s temporary release under
IV. CONCLUSION
For the reasons set forth above, Zamorano‘s Motion to Revoke Pretrial Detention Order Pursuant to
Dated this 15th day of May, 2020.
BY THE COURT:
William J. Martínez
United States District Judge