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United States v. Mosqueda

United States District Court, W.D. Pennsylvania

November 7, 2017



          Joy Flowers Conti Chief United States District Judge.

         On September 19, 2017, defendant Jaime Mosqueda (“defendant or “Mosqueda”) filed a motion to revoke detention order with citation of authorities. (Crim. No. 16-233, ECF No. 29; Crim. No. 17-98, ECF No. 41). The government filed a response in opposition. After a de novo review of the proceedings before the magistrate judge, as well as a review of the submissions in this case, the pretrial services report prepared by the pretrial services officer, the arguments of counsel, and the hearing held on October 2, 2017, this court denied defendant's motion and ordered that defendant be detained without bond pending trial. This memorandum opinion sets forth the reasons for the court's decision, which were detailed on the record.

         On October 25, 2016, a grand jury returned an indictment at criminal action number 16-233 charging defendant with illegal reentry after deportation, in violation of 8 U.S.C. § 1326. On April 4, 2017, a grand jury returned an indictment at criminal action number 17-98 charging defendant with: (1) at count 1, making a false statement to a government official, in violation of 18 U.S.C. § 1001; (2) at count 2, possession of a firearm by an illegal alien, in violation of 18 U.S.C. § 922(g)(5)(A); and (3) at count 3, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

         The criminal charges against Mosqueda stem from an incident in Clairton, Pennsylvania on September 3, 2015 in which Aaron Barrow was shot to death. Officers recovered eighteen shell casings, five firearms, and numerous indicia of heroin manufacturing, including 13, 000 empty stamp bags.

         Officers detained defendant, took him to the Clairton police station and gave him Miranda warnings. Defendant signed the warnings as “Orlando Rios Olno.” He told the officers that his name was Orlando Olno, he was from Puerto Rico, and he had been staying in New York and Pittsburgh, Pennsylvania. Defendant provided a United States Social Security card and a Puerto Rico birth certificate in the name of Orlando Olno. Through a fingerprint scan, officers determined that defendant's name was actually Jaime Mosqueda, a/k/a Jorge Antonio Collazo; he was a citizen of Colombia; and he was previously deported.

         Mosqueda admitted that he was involved in the incident in which Barrow was killed. Two other individuals and he were in the residence smoking marijuana when they heard sounds coming from the second floor. Mosqueda told “Ifi” to grab the “chopper” (a sawed-off shotgun). Mosqueda grabbed a .380 caliber firearm, went to the bottom of the stairs, turned a light on and saw an unknown male at the top of the stairs who began to run down while shooting a gun. Mosqueda stated that he fired four times and the intruder ran back upstairs. Mosqueda then left and was stopped a short time later by police.

         The officers interviewed Anthony Gardner, who testified that he was in the residence with “Bo, ” whom he described as paralyzed and confined to a wheelchair. It is reasonable to infer that “Bo” is Mosqueda, who has been confined to a wheelchair since he was shot by a DEA agent in Houston, Texas in 2001. Gardner stated that “Bo” had a firearm in his lap and always has a firearm on his person. The coroner determined that Barrow was killed by .380 caliber bullets, which was the firearm used by Mosqueda. That firearm was also involved in an assault sixty-three days earlier.

         As a result of the incident, Mosqueda faced numerous criminal charges in state court. He was not charged with homicide as investigators concluded that he acted in self-defense. Mosqueda was convicted after a bench trial of use/possession of drug paraphernalia and False ID to law enforcement officer and sentenced to three to nine months of incarceration. Mosqueda was found not guilty of the gun charges. The Bureau of Immigration and Customs Enforcement (“ICE”) filed a detainer.

         Mosqueda has several prior drug-related convictions, including a 188-month sentence for aiding/abetting possession with intent to distribute fifty grams or more of crack cocaine and illegal alien in possession of a firearm. His criminal history indicates use of several aliases and he has a prior conviction for failure to ID/fugitive from justice. Mosqueda was on supervised release at the time of the incident. He was sentenced to six months imprisonment for the supervised release violations by the federal district court for the Southern District of Texas.

         Pretrial services prepared a report which concluded that there were no conditions that will reasonably assure the appearance of Mosqueda at trial and protect the safety of the community. A detention hearing was held on July 13 and 18, 2017. At the hearing, the magistrate judge determined that defendant posed a risk of flight and was a danger to the community and entered an order of detention for defendant pending trial.

         After defendant moved to revoke the order of detention, this court held a de novo hearing on October 2, 2017. Mosqueda would like to be released to return to Houston, Texas, where his common law wife and two-year-old son reside. His wife is a legal resident of the United States and is willing to serve as a third-party custodian for defendant and permit him to live with her if he is released on bond. There are no firearms in the home. Mosqueda argues that he cannot flee to Colombia because he would be killed if he returns. He filed an asylum petition and a hearing is scheduled for November 17 and December 5, 2017, in Texas. He contends that conditions of home confinement and electronic monitoring are sufficient to alleviate concerns about flight risk and safety to the community and would enable him to participate in the asylum hearing. After reviewing the transcript of the detention hearing held by the magistrate judge, and taking into consideration the pretrial services report, as well as the arguments and evidence presented by the parties at the hearing held on October 2, 2017, the court denied defendant's request for bond.


         The court's standard of review of a magistrate judge's denial of pretrial detention is de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). The structured system of the Bail Reform Act, 18 U.S.C. § 3141 et seq., regarding the release or detention of a defendant before trial seeks to ensure that the interests of the defendant and the public are carefully considered and contemplated before release or detention is ordered. The court is charged with holding a hearing to determine whether there exists “any condition or combination of conditions set forth in [18 U.S.C. § 3142(c)] that will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community.” 18 U.S.C. § 3142(f). Section 3142(c)(1)(B) of the Bail Reform Act sets forth a nonexclusive list of conditions that a court may impose upon granting a defendant's motion for pretrial release. If the court determines no sufficient condition or combination of conditions exists, however, the court may order that a defendant be detained without bail pending trial.

         In this case, the parties agree that the rebuttable presumption in 18 U.S.C. § 3142(e)(3) does not apply. The government, therefore, bears the burden to prove risk of flight justifying pretrial detention by the preponderance of the evidence standard. The government must demonstrate danger to the community justifying pretrial detention by ...

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