Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Transcription

1 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO ABRAN FIGUEROA, : a/k/a "King Ace," PRETRIAL DETENTION ORDER AND NOW, this day of, 2010, after an evidentiary hearing and argument of counsel for the government and the defendant, the Court FINDS that: (a) the defendant has failed to rebut the presumption that, based on the charges in the indictment, he is both a danger to the community and a risk of flight pursuant to 18 U.S.C. 3142(e); (b) the government has proved by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant as required; and (c) the government has proved by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of other persons and of the community, as required by Title 18, United States Code, Section 3142(e). The Court MAKES the following findings of fact: This case is appropriate for detention under Title 18, United States Code, Section 3142(e) because:

2 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 2 of 14 A. Probable Cause And The Evidence In This Case 1. There is probable cause to believe that the defendant has committed the crimes of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d) (one count), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. 1959(a)(5) (one count), conspiracy to commit kidnaping in aid of racketeering activity, in violation of 18 U.S.C. 1959(a)(5) (one count), kidnaping in aid of racketeering, in violation of 18 U.S.C. 1959(a)(1) (one count), assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. 1959(a)(3) (one count), and felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) (two counts), as charged by Superseding Indictment on April 28, The evidence in this case is strong and consists, in part, of audio and video recordings, surveillance observations by law enforcement, seized controlled substances and weapons, and is supported by the testimony of a member of the Federal Bureau of Investigation and various police officers involved in the investigation and arrest of defendant. The evidence shows that during the charged period of 2001 through February 2010, in Bethlehem, in the Eastern District of Pennsylvania, defendant ABRAN FIGUEROA was a member of a racketeering enterprise known as the Bethlehem Sun Tribe of the Almighty Latin King Queen Nation ("ALKQN"). FIGUEROA, like the other members of the Sun Tribe, swore allegiance and obedience to the Latin King "nation." During the charged time period, the Sun Tribe engaged in numerous racketeering activities including, but not limited to, murder, conspiracy to murder rivals and others who had fallen into disfavor with the Sun Tribe, kidnaping, and the trafficking of controlled substances and weapons. As a member of the Sun Tribe, and in the leadership position of Fifth Crown, FIGUEROA participated in these and other crimes. 2

3 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 3 of During the period of the conspiracy, defendant ABRAN FIGUEROA, and other members of the Sun Tribe, met regularly, in and around Bethlehem, in meetings governed by Tribe rules and the rules of the national leadership of the Latin King nation. In these meetings, dues were collected, "trials" were held on alleged violations of Tribe rules, and punishments were issued, including orders that violators and others be beaten or killed. All decisions and decrees were made based upon the best interests of the Tribe and were binding on all Tribe members. 4. On or about November 25, 2007 through January 2008, defendant ABRAN FIGUEROA, and other members of the Sun Tribe, agreed to kill a Tribe associate known as "Big Head Izzy." FIGUEROA and the other Tribe members determined that Big Head Izzy had "snitched" to law enforcement officers who were investigating a murder committed by co-defendant Neftali Colon, one of FIGUEROA's fellow Sun Tribe members. The murder of Big Head Izzy was prevented when law enforcement officers were tipped off to the plans and arrested the intended victim on an unrelated warrant. 5. On or about January 23, 2008, defendant ABRAN FIGUEROA, and other members of the Sun Tribe, agreed to kidnap and assault a Tribe associate known as "Little Ricky." FIGUEROA and the other Tribe members determined that Little Ricky had "snitched" to law enforcement officer who were investigating a shooting committed years earlier by a person whom, at the time of the shooting, was a member of the Sun Tribe. On January 24, 2008, as a result of the agreement amongst FIGUEROA and the other Sun Tribe members, FIGUEROA and co-defendant Waldemar Torres, a/k/a "King Vail," kidnaped "Little Ricky" at gunpoint from his Bethlehem residence. Little Ricky was taken to a remote area where he was pistol whipped by FIGUEROA and Torres. During the assault, the men told Little Ricky that he was henceforth "stripped of his Crown," 3

4 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 4 of 14 referring to his membership in the Sun Tribe. 6. On at least two occasions between March 2008 and April 2008, defendant ABRAN FIGUEROA unlawfully possessed and sold a total of three firearms to a fellow member of the Sun Tribe. FIGUEROA conducted these transactions despite being prohibited by law from possessing any firearms as a result of a prior felony drug conviction. 7. On July 21, 2010, at the time of the arrest of ABRAN FIGUEROA, agents searching his residence recovered a cache of Latin Kings "literature" including Latin Kings prayers, rules, codes, and minutes and records of Sun Tribe meetings and activities. For example, see Attachment A. FIGUEROA was also in possession of Latin Kings "gear" including beads and clothing depicting a crown. 8. The strength and nature of the case against the defendant and the corresponding probability that the defendant will be incarcerated for a significant period of time, establishes his danger to the community, and increases the high risk that the defendant will not appear as required by the Court. B. Maximum Penalties 1. The defendant is charged with one count of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d), one count of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. 1959(a)(5), one count of conspiracy to commit kidnaping in aid of racketeering activity, in violation of 18 U.S.C. 1959(a)(5), one count of kidnaping in aid of racketeering, in violation of 18 U.S.C. 1959(a)(1), one count of assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. 1959(a)(3), and two counts of felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). 4

5 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 5 of As charged, the defendant faces a total maximum sentence of up to life imprisonment. 3. Accordingly, the defendant has a substantial incentive to flee. C. Prior Criminal Record The defendant has at least one prior felony drug conviction from 2003 in Northampton County, Pennsylvania. D. Ties to the Community While the defendant does appear to have some contacts with the Eastern District of Pennsylvania, it is in this same community that he committed the alleged crimes of violence and firearm trafficking. Moreover, the law does not place significant emphasis on this factor and the contacts in the instant case do not outweigh the other factors discussed herein. Therefore, it is ORDERED that: (1) the defendant be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; (2) the defendant be afforded reasonable opportunity for private consultation with counsel; and

6 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 6 of 14 (3) on Order of a Court of the United States, or on request of an attorney for the government, the person in charge of the corrections facility in which the defendant is confined deliver the defendant to a United States Marshal for the purpose of an appearance in connection with a court proceeding. BY THE COURT: HONORABLE DAVID R. STRAWBRIDGE United States Magistrate Judge 6

7 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 7 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : v. : CRIMINAL NO ABRAN FIGUEROA, : a/k/a "King Ace," GOVERNMENT'S MOTION AND MEMORANDUM FOR HEARING AND DEFENDANT'S PRETRIAL DETENTION The United States of America, by Zane David Memeger, United States Attorney for the Eastern District of Pennsylvania, and John Gallagher and Seth Weber, Assistant United States 1 Attorneys, moves for a detention hearing and pretrial detention of the defendant pursuant to 18 U.S.C. 3142(e). The government seeks this Order, because no condition or combination of conditions will reasonably assure the defendant's appearance as required or the safety of other persons and the community. 2 I. THE FACTS proposed findings of fact: In support of this motion, the government makes the following representations and 1 Under the Bail Act, a judicial officer shall hold a detention hearing upon motion of the government in a case, as here, which involves either a crime of violence or a drug crime punishable by imprisonment of ten years or more, or a crime with a maximum potential sentence of life imprisonment, 18 U.S.C. 3142(f)(1)(A)-(C), or a crime which involves a serious risk that the defendant will flee. 18 U.S.C. 3142(f)(2)(A). 2 The government must prove by a preponderance of the evidence that no conditions of release reasonably will assure the defendant's appearance or prove by clear and convincing evidence that no conditions of release will assure the safety of the community. United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986).

8 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 8 of 14 A. Probable Cause And The Evidence In This Case 1. There is probable cause to believe that the defendant has committed the crimes of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d) (one count), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. 1959(a)(5) (one count), conspiracy to commit kidnaping in aid of racketeering activity, in violation of 18 U.S.C. 1959(a)(5) (one count), kidnaping in aid of racketeering, in violation of 18 U.S.C. 1959(a)(1) (one count), assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. 1959(a)(3) (one count), and felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) (two counts), as charged by Superseding Indictment on April 28, The evidence in this case is strong and consists, in part, of audio and video recordings, surveillance observations by law enforcement, seized controlled substances and weapons, and is supported by the testimony of a member of the Federal Bureau of Investigation and various police officers involved in the investigation and arrest of defendant. The evidence shows that during the charged period of 2001 through February 2010, in Bethlehem, in the Eastern District of Pennsylvania, defendant ABRAN FIGUEROA, was a member of a racketeering enterprise known as the Bethlehem Sun Tribe of the Almighty Latin King Queen Nation ("ALKQN"). FIGUEROA, like the other members of the Sun Tribe, swore allegiance and obedience to the Latin King "nation." During the charged time period, the Sun Tribe engaged in numerous racketeering activities including, but not limited to, murder, conspiracy to murder rivals and others who had fallen into disfavor with the Sun Tribe, kidnaping, and the trafficking of controlled substances and weapons. As a member of the Sun Tribe, and in the leadership position of Fifth Crown, FIGUEROA participated in these and other crimes. 2

9 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 9 of During the period of the conspiracy, defendant ABRAN FIGUEROA, and other members of the Sun Tribe, met regularly, in and around Bethlehem, in meetings governed by Tribe rules and the rules of the national leadership of the Latin King nation. In these meetings, dues were collected, "trials" were held on alleged violations of Tribe rules, and punishments were issued, including orders that violators and others be beaten or killed. All decisions and decrees were made based upon the best interests of the Tribe and were binding on all Tribe members. 4. On or about November 25, 2007 through January 2008, defendant ABRAN FIGUEROA, and other members of the Sun Tribe, agreed to kill a Tribe associate known as "Big Head Izzy." FIGUEROA and the other Tribe members determined that Big Head Izzy had "snitched" to law enforcement officers who were investigating a murder committed by co-defendant Neftali Colon, one of FIGUEROA's fellow Sun Tribe members. The murder of Big Head Izzy was prevented when law enforcement officers were tipped off to the plans and arrested the intended victim on an unrelated warrant. 5. On or about January 23, 2008, defendant ABRAN FIGUEROA, and other members of the Sun Tribe, agreed to kidnap and assault a Tribe associate known as "Little Ricky." FIGUEROA and the other Tribe members determined that Little Ricky had "snitched" to law enforcement officer who were investigating a shooting committed years earlier by a person whom, at the time of the shooting, was a member of the Sun Tribe. On January 24, 2008, as a result of the agreement amongst FIGUEROA and the other Sun Tribe members, FIGUEROA and co-defendant Waldemar Torres, a/k/a "King Vail," kidnaped "Little Ricky" at gunpoint from his Bethlehem residence. Little Ricky was taken to a remote area where he was pistol whipped by FIGUEROA and Torres. During the assault, the men told Little Ricky that he was henceforth "stripped of his Crown," 3

10 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 10 of 14 referring to his membership in the Sun Tribe. 6. On at least two occasions between March 2008 and April 2008, defendant ABRAN FIGUEROA unlawfully possessed and sold a total of three firearms to a fellow member of the Sun Tribe. FIGUEROA conducted these transactions despite being prohibited by law from possessing any firearms as a result of a prior felony drug conviction. 7. On July 21, 2010, at the time of the arrest of ABRAN FIGUEROA, agents searching his residence recovered a cache of Latin Kings "literature" including Latin Kings prayers, rules, codes, and minutes and records of Sun Tribe meetings and activities. For example, see Attachment A. FIGUEROA was also in possession of Latin Kings "gear" including beads and clothing depicting a crown. 8. The strength and nature of the case against the defendant and the corresponding probability that the defendant will be incarcerated for a significant period of time, establishes his danger to the community, and increases the high risk that the defendant will not appear as required by the Court. B. Maximum Penalties 1. The defendant is charged with one count of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d), one count of conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. 1959(a)(5), one count of conspiracy to commit kidnaping in aid of racketeering activity, in violation of 18 U.S.C. 1959(a)(5), one count of kidnaping in aid of racketeering, in violation of 18 U.S.C. 1959(a)(1), one count of assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. 1959(a)(3), and two counts of felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). 4

11 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 11 of As charged, the defendant faces a total maximum sentence of up to life imprisonment. 3. Accordingly, the defendant has a substantial incentive to flee. C. Prior Criminal Record The defendant has at least one prior felony drug conviction from 2003 in Northampton County, Pennsylvania. D. Ties to the Community While the defendant does appear to have some contacts with the Eastern District of Pennsylvania, it is in this same community that he committed the alleged crimes of violence and firearm trafficking. Moreover, the law does not place significant emphasis on this factor and the contacts in the instant case do not outweigh the other factors discussed herein. II. THE LAW A. Presumption of Dangerousness and Flight 1. This Court should order detention of the defendant pending trial because he 3 is both a danger to the community and a serious risk of flight. Due to the nature of the charges brought against the defendant, this Court must presume that the defendant is both a danger to the community and a risk of flight absent sufficient rebuttal by the defendant. See 18 U.S.C. 3142(e). 2. Congress has concluded that, for purposes of bail, engaging in a violent crime which carries a maximum potential penalty of life imprisonment, 18 U.S.C. 3142(f)(1)(A), as the 3 The government must prove by a preponderance of the evidence that no conditions of release reasonably will assure the defendant s appearance or prove by clear and convincing evidence that no conditions of release will assure the safety of the community. See United States v. Himmler, 797 F.2d 156, 161 (3d Cir. 1986). 5

12 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 12 of 14 grand jury has charged the defendant, within five years of the defendant's release from imprisonment on a conviction for a state or federal drug crime punishable by ten years or more of imprisonment, as is the case here, creates a rebuttable presumption that the defendant is a grave danger to the community. See 18 U.S.C. 3142(e)(2)(C) and 18 U.S.C. 3142(f)(1)(C) ; see also United States v. Strong, 775 F.2d 504, 507 (3d Cir. 1985) (examining legislative history and Congressional findings). As charged, the defendant faces a maximum sentence of life imprisonment. See 18 U.S.C. 1962(d) and 18 U.S.C. 1959(a)(1). Accordingly, there is a rebuttable presumption that the defendant must be detained pending trial. See 18 U.S.C. 3142(e). B. Family Ties Not Enough to Rebut Presumption The legislative history of the Comprehensive Crime Control Act of 1983 indicates that Congress found that community or family ties do not weigh heavily in the risk of flight analysis: [Congress] is aware of growing evidence that the presence of this factor does not necessarily reflect a likelihood of appearance, and has no correlation with the question of the safety of the community...[congress] does not intend that a court conclude there is no risk of flight on the basis of community ties alone. Sen. Comm. on Judiciary, Comprehensive Crime Control Act of 1983, S. Rep. No , 98th Cong., 1st Sess. 24, 25 (1983). 6

13 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 13 of 14 III. CONCLUSION Nothing short of 24-hour custody and supervision can ensure the appearance of this defendant and the safety of the community. The conditions of release enumerated in the detention statute at Section 3142(c) would serve only to inform the Court, after the fact, that the defendant has fled or resumed his criminal career. Respectfully submitted, ZANE DAVID MEMEGER United States Attorney /s/ John M. Gallagher JOHN GALLAGHER SETH WEBER Assistant United States Attorneys 7

14 Case 5:09-cr JHS Document 31 Filed 07/23/10 Page 14 of 14 CERTIFICATE OF SERVICE I certify that on this day I caused a copy of the government's detention motion to be delivered by electronic filing upon: Dennis Caglia, Esq. 502 Swede Street Norristown PA telephone (610) facsimile (610) /s/ John M. Gallagher JOHN GALLAGHER Assistant United States Attorney Date: July 23,

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