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United States v. Hernandez-Bourdier

United States District Court, W.D. Pennsylvania

January 5, 2017

UNITED STATES OF AMERICA,
v.
JUAN WILQUIN HERNANDEZ-BOURDIER Defendant.

          OPINION

          Joy Flowers Conti Chief United States District Judge

         I. Introduction

         On October 14, 2016, the government filed a request for detention of defendant Juan Wilquin Hernandez-Bourdier (“defendant”). (ECF No. 10.) After the magistrate judge denied that request and entered an order of pretrial release, the government appealed that decision. This court conducted a de novo review and considered the submissions, arguments of counsel, and evidence presented, as well as the transcript of the hearing held before the magistrate judge, the pleadings in this case, and the pretrial services report prepared by the United States Probation and Pretrial Services Office. The court held a hearing which occurred on two separate days during which the parties made arguments and entered testimony and exhibits into evidence. The court denied the government's motion because defendant met his burden to overcome the presumption arising under 18 U.S.C. § 3142(e) and the government failed to show by clear and convincing evidence that defendant is a danger to the community or to show by a preponderance of the evidence that defendant is a flight risk. The court affirmed the orders of the magistrate judge and ordered that defendant be released on bond with conditions of supervision pending trial, but stayed the order for two weeks for the government to determine whether to appeal this court's order. The government appealed the order and upon the request of the government, the court extended the stay of its order pending that appeal. This opinion sets forth the reasons for the court's decision, which were detailed on the record.

         II. Background

         A. Procedural History

         On October 11, 2016, a grand jury returned a two-count indictment against defendant and his co-defendant[1] at criminal action number 16-222. Defendant was named in both counts of the indictment charging him with conspiracy to possess with intent to distribute 1 kilogram or more of heroin on or about January 26, 2016, a violation of 21 U.S.C. § 846 (count one), and possession with intent to distribute 1 kilogram or more of heroin on or about January 26, 2016, a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i) (count two). (ECF No. 1.) The offenses at counts one and two of the indictment each carry a statutory minimum term of imprisonment of not less than ten years if the conviction is the defendant's first felony drug conviction that is final. 21 U.S.C. § 841(b)(1)(A)(i). The pretrial services report reflects defendant has no criminal history. (Pretrial Services Report at 4.)

         On November 2, 2016, a detention hearing was held before a magistrate judge. (ECF No. 35.) At the detention hearing before the magistrate judge on November 2, 2016, the government entered two exhibits into evidence. (H.T. 11/2/16 (ECF No. 44) at 7.) The magistrate judge determined that defendant presented evidence sufficient to overcome the rebuttable presumption and the government had not met its burden to show by clear and convincing evidence that defendant posed a danger to the community or by a preponderance of the evidence that he was a risk of flight. The magistrate judge entered orders denying the government's request for detention (ECF No. 36), setting a bond as to defendant (ECF No. 37), and setting conditions of release for defendant pending trial (ECF No. 38). The orders were stayed pending appeal to this court. (ECF No. 41.)

         On November 3, 2016, the government filed an appeal of the magistrate judge's decision. (ECF No. 39.) On November 9, 2016, the undersigned judge held a de novo hearing with respect to defendant's detention status. At the hearing held before the undersigned judge on November 9, 2016, the government presented testimony from David Coleman, a computer forensics and media examiner, and Brianna Tetrault, a special agent with Homeland Security Investigations. (H.T. 11/9/16 at 17-41.) Defendant's counsel at the hearing requested additional time to brief an issue raised by the court concerning the implications of a detainer filed by the U.S. Immigration and Customs Enforcement (“ICE”). (H.T. 11/9/16 at 59.) The court granted the request to continue the hearing and permitted the parties to file supplemental briefing. (Id. at 60.) On December 7, 2016, both parties filed supplemental briefs. (ECF Nos. 50, 51.) On December 8, 2016, the detention hearing was concluded. At the continued detention hearing held on December 8, 2016, the government entered fifteen exhibits into evidence. (H.T. 12/8/16 at 8-9.) At the same hearing, defendant presented the testimony of Zinnia Duran, defendant's cousin's fiancée. (Id. at 10-31.)

         After reviewing the transcript of the November 2, 2016 detention hearing, and taking into consideration the briefing, evidence and arguments presented by the parties at the hearing held on November 9, 2016, and December 8, 2016, the court affirmed the magistrate judge's decision to deny the government's request for the detention of defendant, to enter a bond as to defendant and to set conditions of his release. The court ordered defendant be released on bond subject to the conditions of supervision, including the appointment of a third-party custodian, home detention and GPS monitoring, set by the magistrate judge, with the additional condition that defendant would need prior approval of the probation office to leave his home for employment.

         B. Factual Background

         Based upon the record, including the pretrial services report, the following factual background was developed.

         1. The offenses charged against defendant in the indictment

          The indictment arose from a traffic stop by a Pennsylvania State Trooper in Mercer County, Pennsylvania. On January 26, 2016, co-defendant Habys Omar Meran was driving a 2002 Honda minivan travelling eastbound with defendant in the passenger seat. (H.T. 11/2/2016 (ECF No. 44) at 6, ECF No. 42 at 2-3.) Pennsylvania State Trooper Reed Grenci observed the vehicle's windows to be illegally tinted and began to follow the vehicle. (ECF No. 42 at 3.) Trooper Grenci stopped the vehicle after he observed the vehicle switching lanes without using the turn signal. (Id. at 3.) Trooper Grenci obtained consent from the driver to search the vehicle. (H.T. 11/2/2016 (ECF No. 44) at 7.) Because the trooper was aware that this kind of vehicle is known to contain hidden compartments in the rear bumper, the trooper slid under the vehicle and immediately observed an aftermarket hidden trap in the rear bumper. (H.T. 11/2/2016 (ECF No. 44) at 6-7, ECF No. 42 at 3.) The sophisticated trap was electronically operated and utilized hydraulic actuators to open and close the compartment. (ECF No. 42 at 3.) Trooper Grenci found four separate packages located inside the trap. (H.T. 11/2/2016 (ECF No. 44) at 7.)

         Those four packages contained in excess of four kilograms of heroin, which would be sufficient to make 250, 000 stamp bags of heroin with a street value in excess of $2.5 million. (H.T. 11/2/2016 (ECF No. 44) at 7.) The heroin was wrapped in plastic wrap and covered in coffee grounds. (Id., ECF No. 42 at 3.) The fingerprints of the driver were located on the packages. (Id.) There was also a backpack in the vehicle containing a roll of plastic wrap and coffee grounds. (H.T. 11/2/2016 (ECF No. 44) at 7.) Defendant acknowledged that the backpack belonged to him. (Id.) Trooper Grenci arrested defendant and the driver and they were detained by a Mercer County state judge until the time of their federal indictment. (ECF No. 42 at 3.) Defendant's cellular phone was seized and contained conversations on WhatsApp about drugs, as well as pictures of firearms, stacks of money, and people shot dead. (H.T. 12/8/16 at 48.) Numerous family members attended defendant's hearings, and submitted letters on his behalf, most of which were typed and signed by one person who, upon cross-examination, admitted that she typed and signed those letters. She claimed she did so at the direction of the individuals whose names appeared on the letters. (ECF No. 43 Ex. B, H.T. 12/8/16 at 18-21.)

         C. Defendant's Personal Background

         1. Personal Characteristics

         Defendant was 34 years old as of December 8, 2016, i.e., the date of the continued detention hearing before the undersigned judge. (Pretrial Services Report at 4.) According to the pretrial services report prepared by the United States Probation and Pretrial Services Office, defendant is in good physical health, is not under the care of a medical doctor, and is not prescribed any medication. (Id. at 3.) Defendant reported his current mental health status as poor due to the instant federal case; however, defendant does not have a history of mental health issues. (Id.) Defendant has a high school diploma. (Id. at 1.)

         Defendant is a citizen of the Dominican Republic and has a valid passport from that country. (Pretrial Services Report at 2.) Defendant surrendered his passport to a Pretrial Services Officer during the hearing held before the magistrate judge on November 2, 2016. (H.T. 11/2/16 (ECF No. 44) at 44.) Defendant reported that he moved to the United States, specifically, Bronx, New York, in January 2014 and has lived there for the past two years. (Pretrial Services Report at 2.) The residence is reportedly rented by defendant and his wife, and there is not currently a landline telephone installed in that residence. (Id.) Defendant reported no international travel since arriving in the United States. (Id.) According to ICE, defendant was granted a B2 class tourist visa on January 29, 2014, which expired on July 29, 2014. (Id.) On July 22, 2015, defendant filed an application with the Department of Homeland Security to register permanent residence or adjust status. (Id., ECF No. 43 Ex. A.) An initial interview was scheduled for February 10, 2016, but defendant was in custody on that date and unable to attend. (Pretrial Services Report at 2.) ICE considers defendant to be in the country illegally, and as a result a detainer was lodged against defendant on October 26, 2016. (Id.)

         2. Familial Associations

         According to defendant, his parents passed away when he was a child and he was primarily raised in the Dominican Republic by his cousin who was his legal guardian. (Pretrial Services Report at 2.) Defendant was married to a woman in the Dominican Republic from an unspecified date until 2014, at which time the couple divorced. (Id., ECF No. 43-10 at 2-3.) Three children were reportedly born to that union, and defendant said he has a fourth child from a previous relationship. (Pretrial Services Report at 2.) All of defendant's children live in the Dominican Republic and he maintains daily contact with them. (Id.) Defendant and his current wife were married on August 4, 2014, in Bronx, New York and reportedly have no children. (Id., ECF No. 43 Ex. B.) Although his wife was not present during his court proceedings, she submitted an affidavit dated December 7, 2016, affirming that they are married, she loves him and wants him to return. (H.T. 12/8/16 at 4-5.) Defendant's brother and two sisters, one of whom is his co-defendant's wife, live in Bronx, New York, and he is regularly in contact with them. (Pretrial Services Report at 2.)

         Defendant's aunt is willing to serve as third-party custodian and permit him to live with her while he is released on bond. (Pretrial Services Report at 2.) Defendant's aunt lives in Bronx, New York. (Id.) There is a landline telephone installed at her residence to accommodate electronic monitoring if that condition is imposed upon defendant. (Id.)

         3. Work History and Employment Prospects

         Defendant has been employed for two years in construction. (Pretrial Services Report at 3.) Defendant reported that he worked “under the table” for an unknown construction company and earned approximately $100 per day. (Id. at 3.) According to a letter written by defendant's brother, defendant is employed by his brother as a “handy man”. (Id.) Defendant cited no assets, and noted that his only liability is an outstanding medical expense of $3, 000. (Id.)

         4. Criminal History

         Defendant has no prior arrest history. (Pretrial Services Report at 4.) Defendant reported his current mental health status as poor due to the instant federal case; however, defendant reported no history of mental health diagnoses, counseling, or medication. (Id. at 3.) Defendant reported substance abuse of cannabinoids once two years ago and cocaine on weekends when he was aged 20-21. (Id. at 4.)

         III. Standard of Review

         The court's standard of review of a magistrate judge's decision about pretrial detention is de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir.1985).

         IV. ...


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