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United States v. Gomez-Fernandez, 10th Cir. (1999)
United States v. Gomez-Fernandez, 10th Cir. (1999)
NOV 2 1999
PATRICK FISHER
Clerk
v.
VICTOR MANUEL
GOMEZ-FERNANDEZ,
Defendant-Appellant.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
United
States v. Stricklin , 932 F.2d 1353, 1354 (10th Cir. 1991). Although [o]nce the
presumption is invoked, the burden of production shifts to the defendant . . . .
the burden of persuasion regarding risk-of-flight and danger to the community
always remains with the government.
courts detention order is plenary as to mixed questions of law and fact and
independent, with due deference to the district courts purely factual findings.
Id. at 1355.
In determining whether any condition or combination of conditions would
reasonably assure defendants appearance and the safety of the community, the
court must consider the factors contained in 3142(g), including (1) the nature of
the offense and whether the offense involved violence or narcotic drugs; (2) the
weight of the governments evidence; (3) the history and characteristics of the
defendant; and (4) whether the defendant posed a serious danger to any person or
the community.
Here, the district court analyzed the 3142(g) factors and correctly
determined that the government had carried the burden of persuasion on the issue
of risk of flight. First, the court noted that the case against defendant involved
a large drug distribution conspiracy, and that the governments evidence
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supported its contention that defendant played a major role in the alleged
conspiracy. The court then found that defendant had provided only limited
information regarding his history and characteristics and had not demonstrated
how this information supported defendants request for release. Finally, the court
concluded that defendants threat of harm to a police officer established his
danger to the community.
On appeal, defendant argues that the district court inappropriately
considered his national origin in making its bond determination. Defendant has
been a naturalized citizen of this country since 1997 and is married to a United
States citizen. However, the government produced evidence that defendant and
his wife have strong and on-going ties to Mexico, and in fact, frequently travel
to that country. The government also alleged that relatives and co-conspirators of
defendant have fled to Mexico, and that defendant was planning a trip to Mexico
to attend the wedding of one of these relatives and co-conspirators. The district
court therefore, adopted the position of the government in finding that defendant
was a flight risk.
Based on our review of the parties briefs on appeal and appendices, we
conclude that the district courts factual findings underlying its detention order
are not clearly erroneous. The district court did not err in finding that defendant
posed a serious risk of fleeing and that no condition or combination of conditions
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