United States District Court, D. New Mexico
D. Tierney Acting United States Attorney Jennifer M. Rozzoni
Shaheen P. Torgoley Assistant United States Attorneys United
States Attorney's Office Albuquerque, New Mexico
Attorneys for the Plaintiff.
M. Porter Albuquerque New Mexico Attorney for the Defendant.
UNSEALED  MEMORANDUM OPINION AND
MATTER comes before the Court on the United
States' Appeal of Magistrate Judge's Release Order,
filed August 28, 2017 (Doc. 130)(“Appeal”). The
Court held a hearing on August 31, 2017. The primary issue is
whether Defendant Jassiel Castanon-Perez is a flight risk.
The Court concludes that, in light of her limited ties to the
United States, and the serious charges she faces,
Castanon-Perez is a flight risk. The Court grants the Appeal
and vacates the release order.
January, 2015, Castanon-Perez and Lourdes Romero-Castanon
drove from Chihuahua, Mexico, into the United States of
America to Albuquerque, New Mexico, with over nine-hundred
grams of methamphetamine hidden in the vehicle's oil pan.
See Plea Agreement ¶ 10, at 4, filed September
27, 2017 (Doc. 161). In Albuquerque, they met with undercover
DEA agents at a storage unit, where the undercover agents
removed the methamphetamine from the oil pan and paid
Romero-Castanon $1, 500.00. See Plea Agreement
¶ 11, at 4; Appeal at 2-7. Castanon-Perez concealed the
$1, 500.00 in her purse when she and Romero-Castanon later
crossed the border into Mexico. See Plea Agreement
¶ 12, at 4.
was arrested on February 27, 2017. See Appeal at 3.
In August, 2017, Castanon-Perez asked the Court to release
her from custody. See Defendant Jassiel
Castanon-Perez's Motion to Review Detention and Set
Conditions of Release at 1, filed August 7, 2017 (Doc. 110).
At a hearing on August 25, 2017, the Honorable Karen B.
Molzen, United States Magistrate Judge, granted
Castanon-Perez' request, but stayed the ruling until
close of business on August 28, 2017, to allow the United
States to appeal the decision to the Court. See
Appeal at 4; Clerk's Minutes (dated August 25, 2017),
filed August 25, 2017 (Doc. 124).
Appeal, the United States argues that, when there is probable
cause to believe that a defendant committed a drug-related
crime for which the maximum imprisonment term is ten years or
more, there is a presumption that no combination of release
conditions can reasonably assure the defendant's future
appearance in court. See Appeal at 4 (citing 18
U.S.C. § 3142(e)). According to the United States, the
§ 3142(e) presumption applies to Castanon-Perez, because
the Indictment shows that there is probable cause that
Castanon-Perez committed a drug offense for which the maximum
imprisonment term is 10 years or more. See
Appeal at 5. The United States argues that Castanon-Perez has
not overcome this presumption by stating that she has
traveled to the United States in the past, and has a child
and an aunt who are United States citizens. The United States
identifies several factors indicating that Castanon-Perez is
a fight risk:
Castanon is not a U.S. Citizen and does not have permission
to remain in the United States. Castanon does not live in the
United States; does not own a home here; does not work here;
does not possess any domestically-issued identification that
would demonstrate ties to the community; and has no traceable
assets that the Court could restrain in order to assure her
appearance. Castanon is a citizen of Mexico with easy access
to that nation. Her presence in the United States is as
fleeting as that of any tourist, with one exception: she
faces a prison term of ten years to life if convicted on the
present charges, and her trial is only weeks away.
at 6. The United States also contends that there is an
“immigration hold” on Castanon-Perez such that
she is subject to be processed for removal without appearing
before an immigration judge. Appeal at 5-7.
Court held a hearing on August 31, 2017. See Draft
Transcript, taken August 31, 2017
(“Tr.”). The United States stated that it believed
that Castanon-Perez is a flight risk and not a danger to the
community. See Tr. at 5:8-15 (Court, Torgoley). The
United States argued that Castanon-Perez is a flight risk,
because she was born and raised in Mexico and has little
connection to the United States. See Tr. at 6:11-23
(Torgoley). The United States asserted that, given the
charges alleged against Castanon-Perez, she must overcome a
presumption that there is no combination of release
conditions sufficient to ensure that she will not flee.
See Tr. at 6:24-7:9 (Torgoley). The United States
contended that it would introduce evidence at trial that will
show that Castanon-Perez took an active and knowing role in
bringing nine-hundred grams of methamphetamine over the
border from Mexico. See Tr. at 7:11-10:3 (Torgoley).
then argued that she is not a flight risk, because she
expects to be acquitted at trial and hopes to have an
opportunity to continue to visit the United States in the
future. See Tr. at 12:2-13 (Porter). Castanon-Perez
asserted that she returned to the United States several times
between the date of the incident for which she is indicted
and the date of her arrest, which, according to
Castanon-Perez, shows a “lack of consciousness of
guilt.” Tr. at 12:15-20 (Porter). Castanon-Perez then
argued that the evidence shows that she was not a part of the
drug transaction's planning or execution. See
Tr. at 14:12-20 (Porter). She also asserted that she has many
meaningful ties to ...