Submitted July 6, 2015, Motions Panel
Appeal from the United States District Court for the District of Arizona. D.C. No. 2:15-cr-00632-DLR-1 District of Arizona, Phoenix. Susan R. Bolton, District Judge, Presiding.
Robert J. McWhirter, ASU Alumni Law Group, Phoenix, Arizona, for Appellant Ernesto Santos-Flores.
John S. Leonardo, United States Attorney, Krissa M. Lanham, Deputy Appellate Chief, and William G. Voit, Assistant United States Attorney, United States Attorney's Office, Phoenix, Arizona, for Appellee United States of America.
Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.
Defendant Ernesto Santos-Flores appeals the district court's order of detention pending trial. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291. We hold that the district court erred in ordering pretrial detention based on the likelihood that, if released pending trial, Santos-Flores would be placed in immigration detention and removed from the United States, precluding his appearance for trial. We affirm the district court's detention order, however, based on the district court's alternative, individualized analysis of factors that make Santos-Flores a voluntary flight risk.
Santos-Flores, a native and citizen of Mexico, is charged with one count of felony illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a), as enhanced by § 1326(b)(1). The government alleges that Santos-Flores was previously convicted of felony illegal reentry on November 19, 2014 in the United States District Court for the Western District of Texas, and sentenced to a term of time served plus one year of supervised release. The conditions of supervised release included not entering the United States without documentation and not committing any other crimes. Santos-Flores was then, on or about December 9, 2014, removed from the United States to Mexico pursuant to a reinstated order of removal. On March 30, 2015, Santos-Flores was apprehended by the Border Patrol in Maricopa County, within the District of Arizona. He presented the Border Patrol with three forms of false identification (a United States passport, birth certificate, and Social Security
card) and claimed to be a United States citizen. The government conducted an immigration history check and determined that Santos-Flores was not a citizen and did not appear to have obtained authorization to return to the United States.
Santos-Flores was charged by complaint on April 1, 2015, and indicted (following an extension of time) on May 26, 2015. A magistrate judge of the District of Arizona issued an order of detention pending trial on April 8, 2015. Santos-Flores appealed, and the district court affirmed the detention order on May 26, 2015. This appeal followed.
Under the Bail Reform Act of 1984, as amended, Congress has determined that any person charged with an offense under the federal criminal laws shall be released pending trial, subject to appropriate conditions, unless a " judicial officer finds 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). Only in rare cases should release be denied, and doubts regarding the propriety of release are to be resolved in favor of the defendant. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).
Here, the government does not contend, nor did the district court find, that Santos-Flores poses a danger to any other person or the community pending trial. The district court found, however, that if Santos-Flores were released under the Bail Reform Act, he likely would be unable to appear at trial because he would be detained by United States Immigration and Customs Enforcement (" ICE" ) and removed from the United States. In the alternative, the district court found that his alleged illegal reentry, violation of supervised release, and use of fraudulent identification documents indicated that Santos-Flores could not be trusted to obey a court order to appear.
On a motion for pretrial detention, the government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). We review the district court's factual findings concerning whether any condition or combination of conditions will reasonably assure the appearance of the defendant as required under a " deferential, clearly erroneous standard." United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). The conclusions based on such factual findings, however, present a mixed question of fact and law. See Hir, 517 F.3d at 1086. Thus, " ...