IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA ) 

 ) Case No. 11 CR 783 

 vs. ) 

 ) Jeffrey T. Gilbert 

MARGARITO LECHUGA ) Magistrate Judge 

aka “Ramon Nevarez-Garcia” ) 

MEMORANDUM OPINION AND ORDER

 THIS CAUSE coming to be heard on November 22 and 30, 2011, upon the 

Government’s oral motion to detain the defendant MARGARITO LECHUGA 

pursuant to 18 U.S.C. § 3142, and on December 16, 2011, for a continued hearing 

with respect to issues relating to bond, and the Court having reviewed and 

considered the evidence and arguments presented at the hearings, therefore, the 

Court hereby finds as follows: 

 1. Defendant and two co-defendants are named in a six-count indictment 

returned on or about November 2, 2011 (the “Indictment”), in which they are 

charged with knowingly and intentionally possessing 500 grams or more of cocaine 

with intent to distribute that controlled substance, and with conspiring with each 

other to do so. Defendant and his co-defendants also are charged with using a 

telephone to commit the narcotics offenses charged in the Indictment. 

 2. Because Defendant was indicted and charged with a crime under the 

Controlled Substances Act, 21 U.S.C. § 801 et seq., for which the maximum term of 

imprisonment potentially is ten years or more, a rebuttable presumption arises that 
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no condition or combination of conditions can be imposed that will reasonably assure 

the safety of any person or the community and the appearance of Defendant as 

required to respond to the charges. 18 U.S.C. § 3142(e). For that reason and others, 

the Government opposes Defendant’s release on bond pending trial. Pretrial 

Services also recommends against releasing Defendant. 

 3. This is a close call, in the Court’s view. The Court, however, has 

considered all of the arguments made by the Government and by Defendant as well 

as the recommendation of Pretrial Services. On balance, for the reasons discussed 

below, the Court finds that Defendant has rebutted the presumption of detention 

under 18 U.S.C. § 3142(e) and that there are a combination of conditions that can be 

imposed that will reasonably assure the safety of the community and Defendant’s 

continued appearance in court to respond to the charges he is facing. 

4. The Court conducted a detention hearing as required by 18 U.S.C. 

§ 3142(f) on November 22 and 30, 2011. The hearing was recessed on November 22, 

2011 to permit Defendant to have present in court his sister and brother-in-law 

(Maria and Mario Gomez) who have offered to post rental property they own located 

at 2483 South 10th Street in Milwaukee, Wisconsin (“the 10th Street Property”) to 

secure a bond. The Government also presented some additional evidence at the 

hearing on November 30, 2011. The Court has considered the evidence and 

arguments presented at both hearings in its findings contained herein which is 

consistent with its oral rulings from the bench during the aforementioned hearings. 
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5. The rebuttable presumption under Section 3142(e) requires Defendant 

“to come forward with some evidence that if he is released he will not flee or 

endanger the community.” United States v. Chavez-Rivas, 536 F. Supp.2d 962, 968 

(E.D Wis. 2008). If the Defendant meets this burden of production, the presumption 

remains in the case as an evidentiary fact weighing against release, but the ultimate 

burden of persuasion as to danger to the community or risk of flight rests on the 

Government. Id. The Court finds that Defendant has rebutted the presumption by 

bringing forth at least the following evidence: 

(a) Defendant has no family in Mexico, his country of origin. The 

Government does not dispute that fact. Although Defendant is undocumented 

in this country, all of his family is here. The woman with whom he has been 

in a committed relationship for approximately 25 years, his three children 

with her, his mother, a brother, and his sister and brother-in-law all reside in 

the Chicago-area or in Milwaukee, Wisconsin. Defendant’s adult son from a 

previous relationship also resides in Milwaukee. Defendant’s children and his 

sister and brother-in-law are United States citizens. 

(b) Defendant does not have an extensive or violent criminal record. 

He was charged in 2006 in Berwyn, Illinois with driving without a license and 

other traffic-related offenses. The disposition of those charges is not noted in 

the Pretrial Services Report. Defendant also was arrested in 1993 in El 

Centro Imperial, California for being in this country illegally, sentenced to 60 
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days imprisonment and allowed to voluntarily depart the United States. He 

also was removed from the United States in 1999 at El Paso, Texas on an 

expedited basis. Defendant’s counsel represented, without contradiction by 

the Government, this incident occurred at or close to the border and 

Defendant was allowed to depart voluntarily. Although the Court does not 

make light of the fact that Defendant has entered the country illegally in the 

past, that evidence also shows that Defendant has long-standing ties to, and a 

strong desire to live in, the Chicago area. During the last 25 years, Defendant 

has chosen to live here with his family and not in Mexico even though he has 

done so on an undocumented basis. 

(c) Law enforcement agents seized one kilogram of cocaine from 

Defendant in May 2011 in connection with the crimes charged in the 

Indictment. Defendant, however, was not charged at that time. He was not 

arrested until after he was indicted in November 2011. During the 

intervening six months, Defendant did not flee and did not commit any other 

crimes that have been brought to the Court’s attention. If law enforcement 

agents felt that Defendant was a serious threat to the safety of any person or 

the community, or a serious flight risk, one reasonably can question why he 

was not taken into custody in May 2011. 

(d) Defendant’s sister and brother-in-law have offered to post rental 

property they own in Milwaukee, Wisconsin (the 10th Street Property 
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referenced earlier) to secure a bond for Defendant. When questioned by the 

Court on November 30, 2011, under oath, Mr. and Mrs. Gomez said that they 

bought that property with money they earned over many years and it is not 

encumbered by a mortgage. For tax purposes, this property is appraised at 

over $80,000. A recent independent appraisal, however, valued the property 

at $28,000, less than the Gomezs paid for it. When they received the low 

appraisal, the Gomezs offered to post the equity in their home as additional 

security for a bond. But the appraised value of their home was $4,000 less 

than the amount of the mortgage. The family then raised $7,500 in cash to 

post as additional security for a bond. When the Court asked the Gomezs on 

November 30, 2011, under oath, why they are willing to post the 10th Street 

Property that they bought with their owned hard-earned money, and from 

which they now receive rental income, Mr. Gomez said he knows that 

Defendant will not flee and, in particular, he will not go to Mexico because he 

has no family there. 

For these reasons, the Court finds that Defendant has rebutted the presumption 

under Section 3142(e). 

 6. The Court has considered available information concerning each of the 

statutory factors enumerated in 18 U.S.C. § 3142(g) as well as the evidentiary 

presumption against release that remains even after Defendant has rebutted the 

presumption under 18 U.S.C. § 3142(e). In conducting this analysis, the Court is 
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mindful that the standard is whether there are conditions “that will reasonably 

assure” the appearance of Defendant and the safety of the community. As the 

Seventh Circuit noted in United States v. Dominguez, 783 F.2d 702 (7th Cir. 

1986)(Bauer, J.), if the sole criteria were whether there is probable cause to believe 

that Defendant was involved in serious alleged criminal conduct, “few if any 

defendants in narcotics cases could ever rebut the presumption of dangerousness 

and thereby defeat pretrial detention.” 783 F.2d at 706. The question is whether 

Defendant, presumed to be innocent of the charges against him, 18 U.S.C § 3142((j), 

should be detained or released pending trial subject to certain Court imposed and 

monitored conditions that will reasonably assure the safety of the community and 

Defendant’s appearance at trial. The Court’s analysis of the Section 3142(g) factors 

that inform this determination is as follows: 

(a) Nature and Circumstances of the Offense Charged. Defendant is 

charged with an offense involving an alleged conspiracy to possess and 

distribute a narcotic drug. This is a serious crime. According to the 

Government’s proffer, Defendant faces a minimum of five years and a 

maximum of up to 40 years in prison if he is convicted of all charges. 

 (b) Weight of the Evidence. The Government contends that it has a 

strong case against Defendant. It says it has audio tape recordings of 

Defendant offering to sell cocaine. As mentioned above, law enforcement 

agents reportedly seized one kilogram of cocaine from Defendant in May 2011. 
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At this early stage of the proceedings, there is at least probable cause to 

believe a crime was committed and Defendant committed it. Defendant, 

although presumed innocent as noted above, has not brought forth any 

countervailing evidence nor he is required to do so at this time. 

(c) History and Characteristics of the Defendant. As discussed 

above, Defendant has long-standing ties to the Chicago area and a number of 

family members live here or in Milwaukee, Wisconsin. He lives with his 

girlfriend of 25 years (in a committed relationship akin to marriage), their 

three children, his mother and his girlfriend’s nephew. Defendant also has an 

adult son from a previous relationship who lives in Wisconsin and with whom 

he is now in contact. Defendant has no family ties to Mexico, his country of 

origin. His brother-in-law Mr. Gomez told the Court, under oath, that 

Defendant has no family left in Mexico, and the Government does not contend 

otherwise. Although Defendant is not authorized to work in this country, he 

apparently has been working here as a self-employed laborer to help support 

his family for at least the last 10 years according to the Pretrial Services 

Report. Defendant’s girlfriend also is employed. Defendant’s adult son 

Ulysses lives with Defendant, is a United States citizen, and works as a 

manager of a hair salon. He also contributes to the family’s living expenses. 

Defendant, however, is an undocumented person in this country. 

Therefore, his continued presence in the United States is against the law. The 
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Government states that there is an ICE detainer on Defendant and that ICE 

will take Defendant into custody if he is released on bond by this Court. As 

noted above, in 1993 and 1999, Defendant was arrested in El Centro Imperial, 

California and in El Paso, Texas, respectively, and allowed to voluntarily 

depart from the United States on both occasions. Other than those 

interactions with law enforcement and the traffic offense in Berwyn, Illinois 

discussed above, Defendant has had no interactions with law enforcement 

during the last 25 years. 

Defendant has a Mexican driver’s license that was issued in 2008 in the 

name of “Ramon Nevarez-Garcia,” an apparent alias. There is no record of 

Defendant traveling to Mexico in 2008, but the Pretrial Services Report states 

that Defendant self-reported that he traveled to Mexico on one occasion since 

he immigrated to this country. Whether or not this self-reported trip was in 

2008 is not clear. Moreover, whether and how this self-reported trip takes 

into account the events that gave rise to the incidents in California and Texas 

in 1993 and 1999 mentioned above also is not clear. When the Court asked 

Defendant’s counsel why Defendant had a Mexican driver’s license, he said he 

did not know but offered as a possible explanation that perhaps Defendant, 

who could not legally get a driver’s license in this country, felt it was better to 

have a Mexican driver’s license than no license at all. Why the license is not 

in Defendant’s real name, however, is not explained. 
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The Government contends that Defendant’s use of an alias should be 

held against him as an indication of a lack of trustworthiness and potentially 

of danger. The Government argues as well that Defendant gave law 

enforcement his alias instead of his real name when he was arrested after the 

Indictment was returned, and that he was not truthful when law enforcement 

officers asked him where he lived, and whether car and house keys in his 

pocket were his (the Government says Defendant said they belonged to his 

cousin). 

Although the Government now contends he is a flight risk, Defendant 

was not detained by law enforcement when they seized a kilogram of cocaine 

from him in May 2011 in connection with an incident that seems to give rise to 

the charges in the Indictment. Instead, he was released back into the 

community. He did not flee. He remained here, living with his family and 

working, for the next six months until he was arrested after he was indicted in 

November 2011. Defendant argues that if he intended to flee to evade 

prosecution, he could and would have done so in May or at any time in the 

intervening six months. The Government counters saying that it may not 

have been clear to Defendant in May 2011 that he would face criminal 

prosecution, potential imprisonment and removal from this country. The 

Government argues that those prospects, only possibilities in May, now have 

materialized. 
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According to the Government, because Defendant now is facing certain 

prison time and/or inevitable removal from this country, he has ample reason 

to flee if he is released before trial. Defendant responds that, with no family 

in Mexico, it is much more likely that he will stay here as long as he can stay, 

to be with his family and face whatever consequences await him, whether he 

is convicted of the charges or not. The Government also argues that ICE may 

remove Defendant from the country involuntarily at any time and thus 

prevent him from being tried on the narcotics charges alleged in the 

Indictment. With respect to the latter point, however, the Court notes that 

federal regulations provide a mechanism by which the United States Attorney 

can, if it desires to do so, request a departure-control order suspending 

Defendant’s possible deportation pending trial in this case. 8 C.F.R. §§ 215.2 

and 215.3. If the United States Attorney makes such a request, the Court 

considers it to be more likely than not that the immigration authorities will 

accede to it. 

Giving weight to Defendant’s argument that he has no incentive to 

leave the country is the fact that Defendant’s sister and brother-in-law have 

offered to post the 10th Street Property to secure his bond. Moreover, 

Defendant’s family raised $7,500 in cash when the appraised value of the 

properties they offered to post was lower than they expected. The Gomezs 

understand that they would face the loss of their rental property if Defendant 
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flees. Potentially, they also would be personally responsible for any monetary 

shortfall if the property were seized and could not be sold for the amount of 

the bond. Yet, they still are willing to stand up for Defendant and post their 

property to secure his bond. They stated under oath that they are doing so of 

their own volition and not because of any threats or promises that have been 

made to them. 

Defendant’s adult son Ulysses also is willing to act as a third-party 

custodian and to co-sign Defendant’s bond. Although Ulysses does not earn a 

lot of money, he is willing to put himself at financial risk because he also does 

not think his father will flee. 

(d) Nature and Seriousness of Danger to Any Person or the 

Community. The Government does not contend that any particular person 

would be endangered if Defendant is not detained. It contends, rather, that 

the nature of the crime with which Defendant is charged – a narcotics offense 

– means Defendant is a danger to the community in general and that 

Defendant’s use of an alias in the past also makes him a present danger to the 

community. Defendant also tested positive for cocaine when he was arrested, 

and drug use is an indication that a person may pose a danger to the 

community. Defendant’s girlfriend and son, however, told Pretrial Services 

that Defendant does not have any problems with drug or alcohol use, or any 

history of treatment for abuse. 
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 7. The Government’s strongest arguments in terms of flight risk, in 

addition to the Section 3142(e) evidentiary finding, are that Defendant is a citizen of 

a foreign country, is undocumented in this country, has a Mexican driver’s license, 

and has used an alias including at the time of his arrest on the charges in the 

Indictment. In addition, Defendant is charged with a serious drug-related offense 

and faces a significant amount of time in prison if he is convicted of those charges 

and potential involuntary removal from this country whatever the outcome of the 

pending criminal charges. The Court gives less weight to the Government’s 

argument that ICE might remove Defendant from this jurisdiction before his trial 

because the United States Attorney has the ability to communicate with ICE and 

address that situation directly. The Court also recognizes the Government’s 

contention that Defendant was not truthful with law enforcement agents when he 

was arrested after he was indicted, but also views those events in the context of his 

undocumented status in this country and the inherent stress and uncertainty of that 

situation. The fact that Defendant tested positive for cocaine when he was processed 

upon his arrest also is a factor that weighs against him and in favor of the 

Government’s position. 

8. Defendant’s strongest arguments are that he has strong and longstanding ties to the Chicago area, has lived in a stable family situation here for 25 

years, has no significant criminal history other than as related to his undocumented 

status, and has a sister and brother-in-law who are so convinced that Defendant will 
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not flee or violate the terms of potential release that they are willing to post valuable 

property to secure his bond. In addition, Defendant’s adult son Ulysses is willing to 

be his third-party custodian and put himself at financial risk to secure his father’s 

release. Further, although Defendant is undocumented, his conduct over the past 25 

years evidences a consistent desire to live in the Chicago area rather than Mexico, 

where it is undisputed he has no family, as he has returned to this area time and 

again even after being escorted from the country because of his undocumented 

status. In addition, the fact that law enforcement did not take Defendant into 

custody during the six months between May 2011, when they seized from him a 

kilogram of cocaine, and November 2011, when he was indicted, and that during that 

time Defendant did not flee nor was he arrested or charged with any other criminal 

offenses, also are factors that weigh against a finding that Defendant is a flight risk 

or danger to the community. 

9. Balancing all of the evidence presented and considering the Section 

3142(g) factors, the Court acknowledges that there is a risk that Defendant, now 

facing possible imprisonment and removal from this country, might flee to avoid 

those prospects from materializing. Further, the nature and circumstances of drug 

cases inherently warrant concern as to the safety of the community. Defendant’s 

possession of a Mexican driver’s license and his use of an alias also are concerns 

though his possession of a Mexican driver’s license also is explainable in his 

situation. In this specific case, however, and with reference to this particular 
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defendant, the Government has not shown by a preponderance of the evidence that 

Defendant presents a serious risk of flight or that there are no conditions that can be 

imposed that reasonably will assure that Defendant will remain here for trial. The 

Government also has not shown by clear and convincing evidence that Defendant 

presents a serious danger to any person or to the community at large. Even if the 

Government had met that burden, however, the Court’s view is that there are 

conditions that can be imposed that reasonably mitigate that risk. Defendant’s ties 

to the community, his lack of a significant criminal history, his decision to remain 

here after his initial arrest or encounter with law enforcement in May 2011, and the 

substantial commitments Defendant’s family members are willing to make on his 

behalf outweigh the Government’s evidence in this case even considering the Section 

3142(e) presumption. 

 10. Accordingly, in the accompanying Order Setting Conditions of Release, 

the Court has imposed conditions that it believes reasonably will assure Defendant’s 

appearance as required and the safety of other persons and the community. They 

include but are not limited to the following particular conditions that address the 

matters discussed above: 

(a) that Defendant’s son Uylsses and his sister and brother-in-law 

Maria and Mario Gomez co-sign a bond in the amount of $35,500 to secure 

Defendant’s continued appearance in these proceedings; 
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(b) that Mr. and Mrs. Gomez post their rental property located at 2483 

South 10th Street in Milwaukee, Wisconsin and appraised at $28,000 to secure 

Defendant’s bond; 

(c) that Defendant post $7,500 in cash to secure his bond; 

(d) that Ulysses Lechuga and Maria and Mario Gomez each sign the 

bond papers and agree to be personally responsible for any monetary shortfall 

in the event the Government executes on that bond and the property securing 

it is insufficient to satisfy the full amount of the bond; 

(e) that Defendant’s son Ulysses be appointed as Defendant’s thirdparty custodian; 

(f) that Defendant be released to home incarceration for the first 30 

days and, at the end of that 30 day period, the Court will re-evaluate whether 

home incarceration as opposed to home detention is required, with the input of 

Pretrial Services; 

 (g) that Defendant submit to drug testing and participate in drug 

counseling at the discretion and direction of Pretrial Services; and 

(h) that Defendant surrender any passport he has in his possession. 

 11. At the Government’s request, the Court stays this Order and the 

accompanying Order Setting Conditions of Release until 3 p.m. on Monday, 

December 19, 2011 to allow the Government to appeal these Orders to the District 

Judge. If the District Judge agrees that Defendant should be released upon the 
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conditions described herein and in the Order Setting Conditions of Release entered 

contemporaneously herewith, then Defendant, through his counsel, shall post the 

cash portion of the bond and shall submit to the District Judge signed 

documentation necessary to effectuate the posting of the 10th Street property to 

secure the bond. 

It is so ordered. 

__________________________________ 

 Jeffrey T. Gilbert 

 United States Magistrate Judge 

Dated: December 16, 2011