Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO UNITED STATES OF AMERICA CRIMINAL NO. 19-121 (GAG-MEL) Plaintiff v. ISADORA NIEVES CRUZ Defendant MOTION IN SUPPORT OF IMPOSITION OF BAIL TO THE HONORABLE COURT: COMES NOW, defendant ISADORA NIEVES CRUZ, by and through the undersigned attorney, and very respectfully ALLEGES and PRAYS as follows: I. PROCEDURAL STATEMENT 1. On February 20, 2019 an indictment for conspiracy to possess with intent to distribute controlled substances was filed against defendant Isadora Nieves. She is charged in counts one through five. 2. On February 27, 2019 Defendant Isadora Nieves voluntarily surrendered at the United States District Court upon learning that authorities were searching for her. 3. On February 28, 2018 defendant Nieves was arraigned and defense counsel moved for pretrial release which was denied by the Court pending the presentation of the Pretrial Services Report.
Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 2 of 7 2 4. The defendant believes that she qualifies for bail and that the Court can properly tailor conditions so as to insure her pretrial release. II. APPLICABLE LAW 5. The Eighth Amendment to the United States Constitution provides that "[e]xcessive bail shall not be required..." U.S. Const. Amend. VIII. The subject of bail and detention also implicates the Fourteenth Amendment's Due Process Clause, and requires that laws imposing pretrial detention "serve a compelling governmental interest", United States v. Salerno, 481 U.S. 739, 754-55 (1987), and "the Due Process Clause of the Fifth Amendment". See United States v. Ailemen, 165 F.R.D. 571, 577 (N.D.Cal. 1996) (internal citations omitted). 6. In federal criminal proceedings, release and detention determinations are governed by the Bail Reform Act of 1984. 18 U.S.C. 3141-3156 (1990). These sections contain specific guidelines that "judicial officers" must follow in considering whether a defendant should be detained or released pending federal criminal proceedings. During the original detention hearing defendant s history with controlled substance and mental history supported the imposition of electronic monitoring, although those issues are not in any way monitored by the wearing of an ankle bracelet, but by visiting the Probation Office for periodic testing. A. Factors Judicial Officer Must Take Into Consideration Regarding A Defendant's Eligibility For Release: 7. When making a determination regarding the eligibility of a defendant for pretrial release (whether personal recognizance, unsecured appearance bond, or
Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 3 of 7 3 release on conditions), the judicial officer must consider the factors listed in Section 3142(g), including: a. the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics); b. the weight of the evidence against the person; c. the history and characteristics of the person i. character -- including physical and mental condition), family ties, employment, financial resources, length of time in the community, community ties, past conduct history relating to drug or alcohol abuse, criminal history, record of court appearances; and ii. whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and d. the nature and seriousness of the danger to any person or to the community that would be posed by the person's release. B. Rebuttable Presumption 8. The rebuttable presumption relating to both "risk of flight" and "danger to the community" pertains to those cases where the judicial officer finds there is probable cause to believe that the defendant committed: (1) a drug offense (as defined under
Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 4 of 7 4 Title 21) when the maximum term of imprisonment is 10 years or more; or (2) an offense under Title 18, United States Code, Section 924(c). 18 U.S.C. 3142(e). 9. The indictment alone is sufficient to raise the rebuttable presumption that no condition (or combination of conditions) will ensure the defendant's reappearance for trial and that no conditions of release will ensure the safety of the community, see United States v. Dillon, 938 F.2d 1412 (1st Cir. 1991). 10. In a pretrial detention hearing, the government's burden is to establish by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community. United States v. Orta, 760 F.2d 887 (8th Cir. 1985). The standard is different when the issue is whether any conditions of release will reasonably assure the defendant's attendance at trial (risk of flight); the government need only prove that there are no such conditions by a "preponderance of the evidence." See United States v. Tedder, 903 F. Supp. 344, 345 (N.D.N.Y. 1995)(citing United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986)). III. APPLICATION 11. Because the Court expressed its concern at the initial hearing related to the risk of flight element we will not discuss the danger to the community element. 12. The factors listed in Section 3142(g) strongly militate in favor of the imposition of bail. 13. The nature and circumstances of the offense as proffered by the government are circumscribed only to a narrow event in which the defendant allegedly left a vehicle in a Burger King parking. This is a nonviolent offense, if any, that is not even related to the narcotics case and it severely undermines the weight of the
Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 5 of 7 5 evidence against defendant Isadora Nieves and the government s unreasonable position as to detention. 14. Isadora Nieves has deep family ties within this jurisdiction and she can live with her mother, Miss Jennifer Cruz that has been already interviewed by the pretrial services. Miss Cruz will serve as third party custodian. Defendant has no other ties with any other jurisdiction other than that she has effectuated leisure travel to several countries. Also, there is nothing wrong for a consensual partner to pay for leisure travel of a person when of one the partners do not have the means and ways to do so. 15. Defendant has maintained a gainful employment since age 18 and started selling clothing since age 19 rising to a relative fame within the local fashion scene and as recently as January 2019 she successfully launched her cosmetics line. The continuation of her successful business and its expansion militate against her leaving the jurisdiction as she would stand to lose everything. She currently has limited financial resources, but hereby propises to provide a $10,000 unsecured bond that can be posted by her and/ or her business partner. 16. Defendant has no past conduct history relating to drug or alcohol abuse, criminal history, and has yielded negative to the urine analysis test. 17. At the time of the current offense or arrest, the defendant was not on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law. 18. The risk of flight as to this particular defendant is null. She voluntarily appeared and surrendered in the District Court the same day that the authorities started arresting defendants related to the indictment. There are some co-
Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 6 of 7 6 defendants that are still fugitive, however, Miss Nieves chose the right path and, believing in her innocence promptly surrendered. 19. She is the single mother of an eight month old young girl. Miss Nieves still lactates and cares for the child and the daughter is completely dependent on her mother making it very difficult for a mother just to uproot and leave. Miss Nieve s daughter has severe bronchitis and as close as of January 2019 was interned at the hospital due to a bronchial attack. Both passports of Miss Nieves and her daughter are in the authority s possession further diminishing any risk of flight. These factors would help tie Nieves to the state of Puerto Rico if released. See United States v. Cameron, 2013 U.S. Dist. LEXIS 90271, at 24 (D.N.M., 2013) to compare and contrast miss Nieves with Cameron, a defendant that clearly was a risk of flight. 20. As Miss Isadora Nieves is the last co-defendant in the case (#75) she has a great incentive to fight the charges, abide to the conditions and not flee the jurisdiction. Even when pleading guilty she could greatly benefit through the application of Minimal or Minor participation adjustments and the First Step Act 115 P.L. 391, 132 Stat. 5194, 2018, programs that would see her possible sentence further reduced. The Sentencing Guidelines provide for offense-level adjustments for a defendant whose degree of participation in the offense lessens his culpability. A minor participant may be awarded a two-level reduction of his base offense level, while a minimal participant may be awarded a four-level reduction. U.S.S.G. 3B1.2. "The difference between a minimal and a minor participant is a difference of degree, not kind." See United States v. Cirilo-Munoz, 504 F.3d 106, 139 (1st Cir. 2007).
Case 3:19-cr-00121-GAG Document 65 Filed 03/04/19 Page 7 of 7 7 WHEREFORE, it is respectfully requested from this Honorable Court to NOTE the present motion. RESPECTFULLY SUBMITTED. In San Juan, Puerto this 4 th day of March 2019. S/ALLAN AMIR RIVERA FERNANDEZ ALLAN RIVERA FERNANDEZ USDC-PR 301904 LUIS RAFAEL RIVERA LAW OFFICES CAPITAL CENTER BLDG. SUITE 401 239 ARTERIAL HOSTOS AVENUE HATO REY, PUERTO RICO 00918 PHONE: (787) 763-1780 FAX: (787) 763-2145 E-MAIL: allan.a.riverafernandez@gmail.com I HEREBY CERTIFY: That I on this same date electronically filed the foregoing document with the Clerk of Court for the District of Puerto Rico, through the CM/ECF electronic filing system, which will provide notification of this filing to the United States Attorney s Office for the District of Puerto Rico. S/ALLAN AMIR RIVERA FERNANDEZ ALLAN RIVERA FERNANDEZ USDC-PR 301904 LUIS RAFAEL RIVERA LAW OFFICES