UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20388
Summary Calendar
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UNITED STATES OF AMERICA
Plaintiff-Appellee
versus
ESPERANZA ARIAS
Defendant-Appellant
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Appeal from the United States District Court
For the Southern District of Texas
( H-95-CR-142-24)
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June 12, 1997
Before POLITZ, Chief Judge, WIENER and EMILIA M. GARZA, Circuit Judges.
POLITZ, Chief Judge:*
Esperanza Arias seeks release on bail pending trial for her alleged role in an
extensive drug trafficking scheme. Arias has been charged with conspiracy to possess
with intent to distribute over 1000 kilograms of marihuana, conspiracy to violate the
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
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Travel Act, and possession with intent to distribute marihuana. Five of the defendants
are Arias’s brothers; all lived in an around their mother’s home near Houston.
On December 13, 1996, the Magistrate Judge ordered that Arias be detained
without bail pending trial. Arias immediately sought review of that order in the district
court. On April 18, 1997, after four months of delay, the district court affirmed the
detention order.
The governing statutory provision, 18 U.S.C. § 3142(e), creates a rebuttable
presumption that no condition or combination of conditions reasonably will assure the
appearance of the defendant and the safety of the community in drug cases such as here
presented. Arias thus has the burden of producing controverting evidence; thereafter
the government must carry the ultimate burden of persuasion.
Our review of the record persuades that Arias has rebutted the presumption of
being a danger to the community and a flight risk. Testimony at the detention hearing
demonstrated that Arias: (1) is 44-years old; (2) is a single mother of an 8-year old girl
who is bright and doing well in school; (3) is very close to her daughter and relies a
great deal on her family members for support; (4) is a United States citizen who has
lived her entire life in Houston, where her family has resided for generations; (5) lives
with her mother and a sister in the family home; (6) receives AFDC assistance in
raising her daughter, which requires her to attend classes as a precondition for
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eligibility; (7) although of Mexican descent, is not fluent in Spanish and otherwise has
no ties to Mexico which might facilitate flight thereto; (8) offered testimony of a close
friend of the family and a citizen of good standing that she would not abandon her
family and friends; and (9) has been ill and in need of medical attention, which would
make flight difficult. Notably, the record reflects that neither Arias nor any of her
codefendants are charged with weapons violations, nor have any been shown to be
violent in any manner.
The government contends that Arias is likely to continue her brothers’ drug
business if released on bail and therefore poses a danger to the community. This
element must be proved by clear and convincing evidence.1 The evidence of record
does not meet this level of proof. Although the government produced evidence
suggesting that Arias may have been aware of and even minimally involved in her
brothers’ drug trafficking activities, the record contains little, if any, evidence that Arias
is a flight risk or in any manner poses a danger to the community. We therefore hold
that the district court abused its discretion in denying bail and remand for the setting
of reasonable bail.
REVERSED AND REMANDED.
1
United States v. Fortna, 769 F.2d 243 (5th Cir. 1985).
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EMILIO M. GARZA, dissenting:
In reviewing a magistrate judge’s order of pretrial release, the district court acts
de novo and makes an independent determination of whether release is proper. 18
U.S.C. § 3145(a)(1); United States v. Rueben, 974 F.2d 580, 585 (5th Cir. 1992). On
appeal from the determination of the district court, we review for an abuse of
discretion. Reuben, 974 F.2d at 586. In this case, Arias was arrested under the
Controlled Substances Act, 21 U.S.C. § 801 et seq., which carries a rebuttable
presumption that no conditions of release exist that would reasonably assure the
appearance of the accused or the safety of others and the community. 18 U.S.C. §
3142(e); Reuben, 974 F.2d at 586; United States v. Jackson, 845 F.2d 1262, 1265 (5th
Cir. 1988).
The magistrate judge issued explicit findings that Arias does not rebut this
presumption. After a lengthy detention hearing, the magistrate held that, as recently as
the week before her arrest, Arias had contacted a confidential informant seeking to
collect money for a drug transaction. He also pointed to evidence that she was
“integrally involved in marijuana trafficking,” and that she had operated out of her
house with family members present. The magistrate held that “she presents a danger
to the community[,]” and that “she could not abide by any condition of release and
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would be back involved in marijuana trafficking.” On de novo review by the district
court, the judge found that the detention order was “amply supported by clear and
convincing evidence” and denied the motion for pretrial release.
It is clear to me that neither the magistrate judge nor the district court abused its
discretion: Arias did not rebut the presumption that she should not be released on bail.
Her family circumstances, age, and the scholastic standing of her daughter make her
no different than hundreds of other people arrested for drug trafficking. I respectfully
dissent.
EMILIO M. GARZA, dissenting:
In reviewing a magistrate judge’s order of pretrial
release, the district court acts de novo and makes an
independent determination of whether release is proper. 18
U.S.C. § 3145(a)(1); United States v. Rueben, 974 F.2d
580, 585 (5th Cir. 1992). On appeal from the determination
of the district court, we review for an abuse of discretion.
Reuben, 974 F.2d at 586. In this case, Arias was arrested
under the Controlled Substances Act, 21 U.S.C. § 801 et
seq., which carries a rebuttable presumption that no
conditions of release exist that would reasonably assure the
appearance of the accused or the safety of others and the
community. 18 U.S.C. § 3142(e); Reuben, 974 F.2d at 586;
United States v. Jackson, 845 F.2d 1262, 1265 (5th Cir.
1988).
The magistrate judge issued explicit findings that
Arias does not rebut this presumption. After a lengthy
detention hearing, the magistrate held that, as recently as the
week before her arrest, Arias had contacted a confidential
informant seeking to collect money for a drug transaction.
He also pointed to evidence that she was “integrally
involved in marijuana trafficking,” and that she had operated
out of her house with family members present. The
magistrate held that “she presents a danger to the
community[,]” and that “she could not abide by any
condition of release and would be back involved in
marijuana trafficking.” On de novo review by the district
court, the judge found that the detention order was “amply
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supported by clear and convincing evidence” and denied the
motion for pretrial release.
It is clear to me that neither the magistrate judge nor
the district court abused its discretion: Arias did not rebut
the presumption that she should not be released on bail. Her
family circumstances, age, and the scholastic standing of her
daughter make her no different than hundreds of other
people arrested for drug trafficking. I respectfully dissent.
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