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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 22-MJ-03273-DAMIAN

UNITED STATES OF AMERICA, Miami, Florida

Plaintiff, August 1, 2022

vs. Pages 1 to 39

AARON THOMAS MITCHELL,

Defendant.

_____________________________________________________________

REMOVAL/DETENTION HEARING

BEFORE THE HONORABLE LAUREN FLEISCHER LOUIS

UNITED STATES MAGISTRATE JUDGE

(TRANSCRIPT OF DIGITAL AUDIO RECORDING)

APPEARANCES:

FOR THE GOVERNMENT: FRANK TAMEN, ESQ.

AEJEAN CHA, ESQ.

UNITED STATES ATTORNEY'S OFFICE

99 Northeast Fourth Street

Miami, Florida 33132

FOR THE DEFENDANT: ANDREW JACOBS, ESQ.

ASSISTANT FEDERAL PUBLIC DEFENDER

FEDERAL PUBLIC DEFENDER'S OFFICE

150 W. Flagler Street

Suite 1500

Miami, Florida 33130

TRANSCRIBED BY:

PATRICIA DIAZ, FCRR, RPR, FPR

Official Court Reporter

United States District Court

400 North Miami Avenue

11th Floor

Miami, Florida 33128

(305) 523-5178

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(PROCEEDINGS TRANSCRIBED FROM DIGITAL AUDIO RECORDING)

COURTROOM DEPUTY: Calling United States versus Aaron

Thomas Mitchell, case number 22-3273-Magistrate Judge Damian.

Counsel, please announce your appearances for the

record.

MR. TAMEN: Good morning, Your Honor, Frank Tamen for

the United States, and with me who is going to be covering this

hearing is Department of Justice Civil Rights Division Attorney

Aejean Cha.

MS. CHA: Good morning, Your Honor, Aejean Cha with the

United States.

THE COURT: Thank you, Ms. Cha.

MR. JACOBS: Good morning, Your Honor. Andrew Jacobs

from the Federal Public Defender's Office on behalf of

Mr. Mitchell.

THE COURT: Okay. Thank you, Mr. Jacobs, Mr. Mitchell.

I have you on for two proceedings this morning, removal and

detention hearing.

Before we go any further, can I confirm, I have heard

the phone go a couple of times. Do I have with me the

out-of-district persons who wanted to attend this hearing? You

can either verbalize or Ms. Cha, have you been in contact with

the participants that you sought permission to be here by

phone?

MS. CHA: I have not talked to them this morning, but I

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can check my phone or perhaps the agent can contact them to see

if they have gone on the line.

THE COURT: I appreciate it because I know that they

have a right to be here and they sought to be here, so let's

make sure that technology is on their side.

Okay. I will just ask Mr. Jacobs, what's our intention

with the removal hearing? Are you just going to roll them into

the same proceeding or --

MR. JACOBS: We have a waiver of removal and the

preliminary, but we are ready to conduct the pretrial detention

hearing here in the Southern District.

THE COURT: Do you mind if I go ahead and do that

because otherwise I may forget after the detention hearing?

So, if you have --

MR. JACOBS: Okay, Your Honor.

THE COURT: Please.

Okay. Mr. Mitchell, when you made your initial

appearance in this district, another judge advised you of the

rights that you have when you are charged in one district and

arrested in another, as is what's happening in your case,

right? You're being charged in Arizona. Right?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. But you have been picked up

here.

Before I can commit you to that other district, send

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you there, you have the right to have certain proceedings

conducted here. It's my understanding, because I am holding a

waiver that appears to bear your signature, that you have

decided to waive your right to certain proceedings here. So

let me make sure that you understand that you know that you

have been charged in another district and you have been

apprised of those charges.

You have counsel appointed to represent you here in

this district, Mr. Jacobs. Have you consulted with Mr. Jacobs

about the rights that you have to those proceedings here,

specifically the preliminary hearing and the identity or

removal hearing and production of the warrant? Have you talked

to him about that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you feel that you understand what would

happen at those proceedings, specifically, the removal hearing?

I have to take make sure that the Government can adduce proof

that you are the person who is wanted in Arizona and the

preliminary hearings relate to probable cause.

It's my understanding, though, that it's an indicted

case. Right?

MR. JACOBS: Yes, Your Honor, it has been indicted.

THE COURT: All right. Do you understand what would

happen at those proceedings?

THE DEFENDANT: Yes, Your Honor.

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THE COURT: After consulting with counsel, is it your

decision to waive the right to those proceedings in this

district and have the case move to Arizona?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Then I will accept your waiver as

knowing and voluntarily entered. Let me just confirm that the

signature on this waiver is, in fact, your signature?

THE DEFENDANT: It is, Your Honor.

THE COURT: Before you signed it, did you understand

the rights you would be giving up?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. I have added my signature and

we will get you moving, get the case going.

Have we confirmed that the participants and witnesses

or victims are on the line?

MS. CHA: Your Honor, we have not been able to confirm

that this morning yet.

THE COURT: Okay. If you are present with me on the

phone, can I get a verbal yes, I am here?

Could we ask that question in Spanish?

(Interpreter translating.)

MS. CHA: Your Honor, I just received confirmation that

they are on.

THE COURT: All right. Can we further get confirmation

because embedded in the e-mail request to me asked about an

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interpreter so are the victims meaningfully able to understand

and participate?

I'd like to know.

Could the interpreter ask if the folks on the phone

need help with interpretation because we may have a logistical

issue of setting that up?

The other concern that I have is that I keep hearing

someone join and drop off and join so I don't know the current

status.

Mr. Jacobs, I don't mean to leave you iced here, but I

just want to make sure that logistically we get this going.

MR. JACOBS: No problem, Your Honor.

THE COURT: Will the interpreter ask one more time? I

just am not sure that we're addressing them now.

Ms. Cha, I don't know the extent to which you want to

use names.

I don't know if these folks know that we are trying to

reach them.

MS. CHA: I believe the agent just stepped out and he

is picking up the phone to call them.

THE COURT: Oh, okay.

THE INTERPRETER: Your Honor, should the interpreter

attempt to ask the question again?

THE COURT: Hi.

MS. OLIVAS: Your Honor, this is Jessica Olivas. I'm

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the victim witness advocate in the U.S. Attorney's Office in

the District of Arizona.

We are hoping that the victims are on the line. We are

not quite sure but we have a plan to call them right afterwards

to update them of what is going on. So I wanted to let you

know, they do have the contact information but we are not sure

if they are on the line. We have been trying to reach them.

THE COURT: All right. Here is just my issue. I just

want to make sure, and if you can confirm that the victims have

been provided the time and information for the hearing.

Can you confirm that for me?

MS. OLIVAS: Yes, I can, Your Honor.

THE COURT: And as you may have just heard, someone

e-mailed me a question about interpretation and I don't know

whether or not that request came from you or whether these

folks have been told one way or the other about interpretation,

but is it your understanding that they can't participate unless

someone interprets for them?

MS. OLIVAS: Yes, they can't, Your Honor. But if that

wasn't going to be available, myself and the agent were going

to provide interpretation.

THE COURT: Okay. So then let me just leave it here.

Are there any other requests on behalf of the victims

or can I go ahead and start this hearing?

MS. OLIVAS: You can start, Your Honor, thank you.

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All right. With that, I will turn back to the

Government. I have received both your memoranda.

Mr. Jacobs, I received yours over the weekend and I

have read both. Again, in case I forget to say it at the end

of the hearing, both were excellent and exceptionally helpful.

It's such a rarity that I get memorandum in advance of a

detention hearing, and I just wanted to say thank you.

But with that, I also saw some request to show video

and photos and it does not seem, based on what I have read from

both of you, that there are many facts that are meaningfully in

dispute, so I don't know what evidence either side needs to

advance here because it seems like the facts that are disputed

are few.

MS. CHA: Your Honor, we have the videos available

should the Court like to see them, and we have provided them to

Mr. Jacobs. But we would agree that it does not appear that

the facts are in dispute, that the weight of the evidence is

strong in this matter.

THE COURT: But the video specifically -- I mean, I saw

the pictures, the stills from outside the apartment.

Is there anything else that -- well, let me just ask

here, Mr. Jacobs, is there anything you would like to cross the

agent that we would need the video for?

MR. JACOBS: That I would need the video for, no.

I do think there are other factual issues, not

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necessarily about the allegations themselves but about, for

instance, what evidence the Government had at the time.

THE COURT: You are going to have a fulsome opportunity

to cross the agent. I don't mean to suggest otherwise. I just

want to get, again, to the technology part of it, do I need to

have this video displayed in court?

MS. CHA: Your Honor, only if the Court wishes to see

it but if the Court does not wish to see it we do not plan to

put it on.

THE COURT: Okay. If there is anything that comes out

at the hearing that I think would be guided by the video, I

will ask for it, but at this point I will just ask, again,

having read both your memoranda, it seems to me that I

always -- the way my practice works is that I pursue the

evidence and then I do argument.

So, having read what would be your proffer, it seems to

me that we should just call the agent, unless there is anything

additional that you need to add to that proffer?

MS. CHA: We have nothing additional to add, Your

Honor.

THE COURT: Okay. Mr. Jacobs, do you wish to inquire?

MR. JACOBS: Yes, Your Honor, thank you.

THE COURT: Okay. I will have the agent come forward.

(The witness, Russell Jewell, was duly sworn.)

COURTROOM DEPUTY: Please be seated. Speak into the

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microphone.

Can you state your name, spell your last name for the

record and tell us where you're employed.

THE COURT: My name is Russell Jewell. That's spelled

J-E-W-E-L-L. I am employed by the Federal Bureau of

Investigations assigned to the Phoenix Field Office, working

out of the Sierra Vista, Arizona RA.

DIRECT EXAMINATION

BY MR. JACOBS:

Q. Good morning, Special Agent Jewell.

A. Good morning.

Q. How long have you been with the FBI for?

A. Twelve years.

Q. I want to first talk about the various pieces of evidence

in this case. Okay?

A. Okay.

Q. My understanding is that the alleged victim, MV, was

interviewed on April 25th, 2022. Correct?

A. Correct.

Q. And that's the same day that this alleged incident took

place?

A. Correct.

Q. It's my understanding there were two SANE exams conducted.

Correct?

A. Correct.

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Q. The first, again, was on April 25th?

A. Correct.

Q. And then a second was performed on May 10th. Is that

right?

A. I don't recall the exact date, but it was sometime after

the initial exam.

Q. Okay. Were there any reports produced from those SANE

exams?

A. Yes.

Q. You have reviewed those?

A. Yes.

Q. Do you remember when they were dated?

A. I don't recall the dates off the top of my head, no. If

you can provide them to me, I will be happy to provide those

dates.

Q. I don't have them, I'm sorry.

A. Okay.

Q. The defendant was taken into custody on April 26th.

Correct?

A. That sounds correct.

Q. And he gave a statement. Is that right?

A. Right, correct.

Q. The same day?

A. Right, correct.

Q. There is some video evidence or video surveillance evidence

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in this case. Correct?

A. Correct.

Q. And that was obtained on April 27th?

A. Correct.

Q. And then Mr. Mitchell's phone was seized when he was

arrested. Is that right?

A. That is correct.

Q. When was the analysis of his phone done?

A. I don't -- I didn't conduct the analysis myself. That was

done by another officer. The exact date I can't give you that.

I don't know.

Q. Was that done by state law enforcement or FBI?

A. So, it was a detective from Douglas Police Department who

is also a task force officer for the FBI, so he works within

our office but also as a detective with Douglas Police

Department.

Q. And that photo was, again, seized when he was -- when

Mr. Mitchell was taken into custody on the 26th?

A. When he was taken into custody. Correct?

Q. You mentioned that you have been an FBI agent for 12 years.

Is that right?

A. Right, correct.

Q. Do you remember all the steps it took to apply to be a

special agent?

A. It's been some time, but, yeah.

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Q. Okay. You filled out an SF-86. Is that right?

A. That's correct, yes.

Q. Can you tell the Court what's an SF-86?

A. An SF-86 is basically one of the initial steps taken for

somebody applying to federal -- for a security clearance,

basically, and it has information of your background,

information of where you lived, people you know, your

employment history.

They are pretty comprehensive. It's for a background

investigation, so that's what it's for.

Q. Let's talk about the background investigation. Based on

your answers to the SF-86, an agency conducts a background

investigation. Right?

A. That is correct.

Q. And so they talk to people from your past?

A. Generally, yes.

MS. CHA: Objection as to the relevance.

THE COURT: The relevance I understand, and Mr. Jacobs,

just so you know, judges also do the exact same process so it's

known to the Court.

MR. JACOBS: I will move on then. Thank you, Your

Honor.

BY MR. JACOBS:

Q. You took a polygraph, though. Right?

A. Yes, for the FBI you do. I don't know how other agencies

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do it. Some agencies require that. Some do not. I don't

know, that's agency dependent.

Q. Okay. Polygraphs are also very probing?

A. The one I took was, yes.

Q. They talk about alcohol use. Correct?

A. It talks about mostly what's in the SF-86.

Q. Right.

A. Correct.

Q. So criminal history. Yeah?

A. Correct.

Q. Financial history?

A. You know, honestly, you are asking me questions that I

don't know what his polygraph -- if he took one. They vary

from agency to agency --

Q. Okay.

A. -- so, honestly, I am not comfortable speculating on what

each individual goes through for polygraphs.

In general, yes, polygraphs are taken. I would be

speculating onto what each polygraph and polygrapher asks each

individual.

Q. But yours was probing?

A. I mean, it asks basic information off the SF-86.

Q. Okay. Mr. Mitchell voluntarily surrendered here in Miami

on July 27th. Is that correct?

A. That's correct.

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Q. So he drove from his parents' house to the Miami, I guess

the FBI Miami Field Office in Miramar?

A. I don't know how he got there, but he -- from what I

understand, he did show up to the FBI office, right.

Q. Did he surrender his passport?

A. I do not know. I wasn't there. I do not know.

MR. JACOBS: Okay. Those are all the questions I have,

Your Honor.

THE COURT: Ms. Cha.

CROSS-EXAMINATION

BY MS. CHA:

Q. I have only one area to follow up on with you.

A. Yes.

Q. Special Agent Jewell, in this particular case did the

victim immediately outcry to her friends and family?

A. That's correct, yes.

Q. Did she report it immediately to the police or was it her

family members who encouraged her to report it to the police?

A. It was her family members who encouraged her.

Q. And do you understand that her family members asked her why

she didn't directly report it to the police?

A. Yes.

Q. What do you understand she said?

A. From what I understand, she was concerned about this

incident which took place which was conducted by a police

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officer or someone who represented themselves and she was not

comfortable -- she feared for going to the police to basically

report another police officer.

Q. So, in essence, because she believes it was an officer who

did this sexual assault, she feared reporting it directly to

the police?

A. Yes.

MS. CHA: Thank you.

THE COURT: Any follow-up?

MR. JACOBS: No, Your Honor.

THE COURT: All right. Thank you, Agent Jewell.

THE WITNESS: Thank you.

THE COURT: Ms. Cha, do you have any additional

evidence you would like to advance?

MS. CHA: We don't, Your Honor.

THE COURT: Mr. Jacobs, sticking with the evidentiary

portion of the hearing first, do you have anything else that

you wish to advance? I am aware of the exhibits you attached.

MR. JACOBS: I do, Your Honor. I was going to call

Thomasena Mitchell, Mr. Mitchell's mother.

THE COURT: Okay. Ms. Mitchell, can you come forward?

MR. JACOBS: Just to orient the Court, Your Honor, the

reason for this witness, Mr. Mitchell did not complete a

Pretrial Services Report on advice of his state counsel in

Arizona, so I think Mrs. Mitchell will be able to answer a lot

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of the questions that would ordinarily be in the PRS report.

THE COURT: Okay. I appreciate that.

COURTROOM DEPUTY: Raise your right hand.

(The witness, Thomasena Mitchell, was duly sworn.)

COURTROOM DEPUTY: Thank you.

Please be seated. Speak into the microphone. State

your name and spell your first and last name for the record.

THE WITNESS: Thomasena Mitchell.

THE COURT: Would you spell your first name for me,

please?

THE WITNESS: Sure, T-H-O-M-A-S-E-N-A.

THE COURT: And Mitchell is spelled the same as your

son?

THE WITNESS: Yes, ma'am.

DIRECT EXAMINATION

BY MR. JACOBS:

Q. Good morning, Mrs. Mitchell.

A. Good morning.

Q. What do you do for a living?

A. I am a retired police sergeant.

Q. And so prior to retiring, where were you a police officer?

A. Miami-Dade Police Department.

Q. And how long did you do that for?

A. Thirty years.

Q. And are you married?

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A. I am.

Q. To who?

A. Samuel Mitchell, Jr.

Q. Is that Mr. Mitchell's father?

A. Yes, it is.

Q. Okay. And what did he do for a living?

A. He was a Miami Beach police officer, retired also.

Q. How long did he do that for, if you know?

A. Twenty-eight years.

Q. Okay. Do you own a home?

A. Yes, we do.

Q. Where is that home?

A. In Miami Gardens.

Q. When did you buy it?

A. In the nineties. I am not sure the exact year.

Q. Okay. Is it paid off or is there still a mortgage?

A. There is a small mortgage on it.

Q. Where was Mr. Mitchell born?

A. In Miami.

Q. Where did Mr. Mitchell go to school?

A. He attended local Catholic schools.

Q. Local meaning Miami?

A. Yes, sir, Miami.

Q. Did Mr. Mitchell go to college?

A. He did.

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Q. Where did he go?

A. He went to Miami-Dade College.

Q. Did he graduate?

A. Yes, he did.

Q. What was his degree in?

A. Criminal justice.

Q. When was that?

A. In 2016 or 2017, thereabouts.

Q. After he graduated did he get a job?

A. He did.

Q. Where did he work?

A. He was working at the Port of Miami working as an agent

with the cruise lines, assisting their supervisor when he left

and he also worked at Wild Wings interim before the port job.

Q. So after graduating college but before the port job he

worked at Buffalo Wild Wings?

A. Yes, sir, and Ross, I'm sorry. He did security at Ross.

He had small jobs prior to trying to get his job going.

Q. And how long did he work at the Port of Miami for?

A. I want to say Aaron was there for about nine months.

Q. Do you remember the year?

A. He stopped just before COVID, so that was what, 2020? So

he was there in 2019.

Q. And then after his job at the terminal, what did he do?

A. He went out to Arizona and was working with CBP.

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Q. When did he go out to Arizona?

A. In June of '20 -- what are we in, '22? 2021.

Q. Prior to him going to Arizona, had he ever lived outside of

the state?

A. He did a summer at Tallahassee at FAMU but then he came

home to help me with his ill grandmother and his sisters and he

finished school at Miami-Dade. That was the extent of living

away from home.

Q. If Mr. Mitchell were to get a bond in this case, would he

be able to live with you and his father?

A. Absolutely, all our children are always welcome home.

Q. Prior to his surrender at the FBI, where was he living?

A. With us at home.

Q. As far as you know, Ms. Mitchell, has your son ever had any

issues with drugs or alcohol?

A. No, sir.

Q. Has he ever been arrested for anything prior to this

incident?

A. No, sir, model child.

Q. I think those are all the questions I have for you,

Mrs. Mitchell. I appreciate it.

A. Thank you.

MS. CHA: No questions from the Government.

THE COURT: Thank you for coming forward, Ms. Mitchell.

THE WITNESS: Thank you, Your Honor.

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THE COURT: Watch your step there.

Okay. Mr. Jacobs, anything else?

MR. JACOBS: No further questions, Your Honor.

THE COURT: All right. I know it's the Government's

motion. I am going to tell you, though, Mr. Jacobs, two

things. Your argument that relying on the weight of the

evidence put me back on my heels, I am not going to lie, like

really gave me pause because the case -- the motion for

detention travels on the weight of the evidence, except I am

not sure that I agree with that characterization anymore

because I have been thinking about this almost continuously

since your motion was -- your memo was filed.

And, again, I have had a lot of time to think about

this before this started and I come to you with an open mind

and with questions, but it seems to me that there is a fulsome

presentation of all of the 3142 factors here, and I think it

still very heavily weighs in favor of detention. And I'll tell

you why so that you can respond in any way that you see fit.

This is without prejudice to you making the argument you would

have made without the benefit of my concerns.

It seems to me that, at a minimum, there is either no

dispute or such objective evidence as to not be able to

meaningfully dispute these facts.

Mr. Mitchell is a law enforcement officer. On that day

in April he was a law enforcement officer who displayed on his

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body the fact that he was a law enforcement officer.

He took a child from her school while wearing that

displayed police signage on his body to his apartment.

Whatever happened after that is the subject for another

proceeding at this point, I think, but when confronted with the

accusations that he had had this child in his apartment, his

story is meaningfully contradicted in at least two respects by

the objective evidence, which as you know -- because I know

that you give a very good closing argument -- evidences

knowledge of guilt or the fear of a guilty conscience, that is,

with respect to the backpack and whether or not he departed the

car by himself or with the child.

Only liars need good memories prosecutors always say in

closing argument, so these details are not small, as far as I'm

concerned, the day after the child visited his apartment.

Okay. Traveling only on those facts and without even

consideration of the horrific nature of the allegations, this

is someone who abused a position of trust for the most

vulnerable in our society and then lied about it. Everything

about that indicates to me that this is someone who,

notwithstanding his personal characteristics and the very

loving attentive support of a family unit that is here and that

is always meaningful to me, snapped or broke.

And his ability to abide by a condition of bond and not

be a danger to the community -- I tend to agree with you that

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risk of flight here can be overcome by conditions. It just

could. This is a family unit that I think could keep him under

house arrest, but his danger to this community, to "the

community" I don't think can be addressed because of those

personal characteristics. I don't think it's limited to the

weight of the evidence but, legally, I'm also not sure that I

agree with your argument because the presumption of innocence

will carry with him from this proceeding. Notwithstanding, I

have, obviously, as I must at every detention hearing, weighed

the evidence and particularly that objective evidence that has

been presented to me and has been meaningfully disputed.

So I have to do that at every detention hearing, and

that does not prejudice his position going forward and the

presumption of innocence that cloaks him at every stage of this

proceeding until a jury decides otherwise, but you really made

me think about that.

So those are my concerns. Just to narrow it, if I rely

just on those facts that are neither dependent on

uncorroborated allegations, if I rely just on those objective

facts, it seems quite clear and convincing that this defendant

presents a danger to the community that cannot be reasonably

assured with conditions of bond.

MR. JACOBS: Can I respond, Your Honor?

THE COURT: Please.

MR. JACOBS: Thank you.

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So, two things, I guess, to start with. From a legal

framework perspective, there are circuits who have said that

the weight of the evidence is one factor that the Court must

consider, but it is the least important factor in terms of

detention hearings, and that's the position the Ninth Circuit

takes. If the Court wants a citation, I can provide that.

But even setting that aside, Your Honor, I think the

same conditions that Your Honor has just said can guarantee

that he is not a risk of flight, staying with his family, home

detention, GPS monitoring, third party custodian, even, it

wasn't in the memo, but a percentage bond, the family could put

up some money for a percentage bond, all of those same factors

are the same types of conditions that I think would guarantee

the safety of the community.

Plus, and I don't mean to repeat what's in the memo

because I know the judges hate when lawyers do that, but

Mr. Mitchell's history for the last three months when he has

been on bond have -- you know, he has a flawless record on

bond.

THE COURT: I don't mean to interrupt you but you know

that I often look to how has he complied in the past.

This is such an unusual defendant. This is such an

unusual set of circumstances where nothing in his past would

have indicated that this is coming, so it is -- I find myself

in an odd situation of saying those three months, if the last

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27 years, if the child that Ms. Mitchell just described is

accurate, then there was no way to see this coming, so I don't

see how I see the last three months as an indicator that he

would comply with bond unless and until whatever triggered him

on the 27th to pick that child up happened again.

MR. JACOBS: You see, Your Honor, this is where we

disagree with how to weigh the weight of evidence and how the

presumption of innocence comes to play in detention hearings.

I don't think that the Court should use the

allegations. I am not disputing the seriousness or even the

weight of the evidence the Government has. I am not disputing

that, but to use those allegations to discount, again, like

Your Honor said, 27 years of good behavior, both before this

incident and after this incident, I just don't see how --

THE COURT: I understand. I have had the benefit of, I

don't know, 48 concentrated hours of thinking about this and,

ultimately, because I really did consider whether or not it

would be legal error and to what extent a decision, if one was

then made, because I didn't know what else you would present.

I didn't know Ms. Mitchell was coming in, but if the decision

was how the Government had argued it based primarily on the

events that are described in the memorandum, would that be

legal error.

Here is my issue with it. I don't know, but factually,

in this case it is predominantly the characteristics of the

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defendant that call me to question whether or not a bond could

reasonably assure this community because of the fact that he

abused a position of trust and lied about it afterwards, lied

about details that evidence objectively showed he was lying

about.

It is -- in my mind, I -- Mr. Jacobs, you know that I

see dangerous and heinous crimes at detention hearings all the

time, and I have to give it whatever weight I do at the time of

the detention hearing. It is those two factors that give me

more pause than anything else with respect to Mr. Mitchell and

whether or not he will abide by a bond or whether he thinks he

can get away with being in that special position of trust

again.

MR. JACOBS: Your Honor, I'd like to focus, Your Honor,

on the practicalities of the bond itself because I understand,

you know, that in the abstract we have these allegations where,

yes, he could snap -- as Your Honor is saying, maybe he could

snap at any moment, but if you look at the actual conditions of

the bond, Mr. Mitchell will be basically confined to his

parents' house. He will have a GPS monitor on him.

He is no longer a border patrol officer. He no longer

has this mantle of authority that he allegedly abused.

His mother, as Your Honor said, they have a strong

family unit. Mr. Mitchell is not going to -- maybe -- again, I

am speaking solely on the allegations. If the Government

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thinks that he betrayed the United States' trust as a border

patrol officer, etcetera, etcetera, this individual is not

going to betray his family.

His mother -- they have put up $20,000 in the state of

Arizona. He received a bond there, and the, you know, the

state prosecutor there had, I would say, 95 percent of the same

evidence that is now present before the Court. And the state

prosecutor there stipulated to a bond. The Court signed off on

it. Then they modified it to allow him to leave the state and

come to Florida.

I think these are very important pack factors, but

going back to the practical considerations of this bond. He

will be at home. He will be with his mother.

THE COURT: Hold on. What is the additional evidence

that has become available?

MR. JACOBS: I assume that it's the phone, but it's

unclear to me because based on the conversation with the

special agent, it seems like they had everything within a few

days of his arrest. So I'm not -- you know, the Government in

their motion said that there is new evidence that the state

court did not have. I assume it's the phone, but I don't know,

Your Honor.

THE COURT: Okay. I will have Ms. Cha confirm, but it

seems to me from the time line it will be the surveillance from

the apartment complex.

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MS. CHA: Your Honor, just to clarify. I don't know

the timing of the phone and whether it had been dumped. I

would be surprised if the phone had been dumped and produced to

defendants prior to the bond hearing, but I don't know that for

certain.

THE COURT: I think what you traveled on was a

screenshot that agents saw at the time of his arrest.

MS. CHA: Correct.

THE COURT: So I didn't think it was at least what you

proffered in the memoranda, the search history that was new.

So it seemed just from a timing perspective to me that it could

only be the apartment surveillance and the second SANE exam.

MS. CHA: Your Honor, yes, correct, Your Honor, the

second SANE exam which showed evidence of anal trauma.

MR. JACOBS: But even the second SANE exam was May 10th

and his bond was modified May 17th.

THE COURT: Modified, right, but it had already been

stipulated to and entered immediately after he was picked up on

the 26th. Right?

MR. JACOBS: Yes. So he was -- I think the time line

is arrested on the 26th, arraigned on the 4th, and that's when

the state bond was set. A SANE exam, a second SANE exam was on

the 10th, and then on the 17th the bond was modified.

THE COURT: Okay.

MR. JACOBS: But, again, going back to the terms and

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conditions of our proposed bond, Your Honor, third party

custodian, both parents are willing to sign. Again, they are

willing to put up even more money. I just don't see -- again,

focusing on his history and characteristics, I don't see

Mr. Mitchell fleeing or committing another crime that would, in

all likelihood, result in severe sanctions for his family and,

I mean, embarrassment to his mother, embarrassment to his

family. I just don't see that.

There is no evidence -- first, there is no evidence

proffered by the Government that he would snap again. His

mental health is just not in -- there is nothing about it in

evidence. As Your Honor knows SF-86, polygraph, background

check, all of these things are looked into. So, again, all of

the history and characteristics, other than the weight of the

evidence and the allegation favor giving Mr. Mitchell a bond.

He has no history of drug abuse, of alcohol abuse, of

any of the things that Your Honor typically sees.

Typically, when Your Honor sees a case, you know, a

serious or especially heinous case, the defendant usually has

other factors weighing towards detention. Usually it's

criminal history.

Here we don't have any criminal history, at all. And

it's not even -- his record is clean but it's especially clean

because he was able to get a federal job as a border patrol

agent, and we know that, again, from the SF-86, and I believe

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on that website of border patrol, I believe a polygraph was

required.

But he won't be in the community is the bottom line of

my point. Under the conditions of the bond, he just won't be

in the community. He is not currently employed, so we are not

asking for any exceptions where he will travel within the

community to go to and from a job. The only place he is going

to travel to, Your Honor, is the District of Arizona for court

dates. Otherwise, he is going to be at Mrs. Mitchell and

Mr. Mitchell's home here in Florida with a location monitor.

THE COURT: All right. I am going to give Ms. Cha the

last word.

Mr. Jacobs, did you have a chance to make your full

argument?

MR. JACOBS: Yes, Your Honor.

MS. CHA: Thank you, Your Honor. Your Honor, we don't

rely solely on the weight of the evidence as defense would have

it. We rely on all the 3142(g) factors.

The first factor is the nature and circumstances of the

defense. Here we charge him with kidnapping of a minor which

is a presumption case. That strongly militates in favor of

detention.

The second, of course, is the weight of the evidence

which we all discussed, but the third and I'd like to spend

some time on this one which Your Honor has pointed out, is the

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history and characteristics of the defendant.

Mr. Jacobs believes that because he passes fulsome

background check and passed a polygraph that this shows that he

is not dangerous but, Your Honor, I think it shows the exact

opposite. It is precisely what allowed him to become a federal

law enforcement officer to receive specialized training and

then to be able to abuse that to kidnap and sexually assault a

child.

And, Your Honor, the fact that his badge has been taken

away from him, the fact that he no longer carries a CBP

insignia or the like, that doesn't preclude him from committing

other offenses. You can go off on Amazon. You can go to your

local costume store and you can still receive all the trappings

of the law enforcement officer.

Your Honor, I want to talk about a case that the

defense cited, and it's U.S. v Fiandor in his brief. It's a

Southern District of Florida case which I understand was

decided by Judge Moore.

You know, defense cited to this case for the

proposition that because the defendant self-surrendered he

wasn't a flight risk. The very next sentence in that case

Judge Moore held that the defendant should be detained because

he was a danger to the community. In that particular case, the

defendant was charged for planning to impersonate officers and

rob drug houses of drugs. And the Court held the fact that he

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planned to impersonate a cop, in and of itself, was what made

him so dangerous.

And I am reading from the opinion, more damaging than

these facts -- it's referring to the defendant's criminal

history -- is the nature of Fiandor's alleged criminal

activity. Fiandor and his compadres allegedly impersonated law

enforcement officers in order to rob residences of drugs and

money.

Your Honor, if the defendant in Fiandor is dangerous

because he has alleged to have impersonated law enforcement

officers to be able to rob drug dealers of drugs, how much more

so is the defendant who actually is a real federal law

enforcement officer, although he has been fired, who used and

abused his law enforcement privileges to kidnap and rape a

child who was waiting for school.

Again, Your Honor, we would submit that even though he

doesn't have his badge anymore, these are easy things that he

could be able to get counterfeit.

The last thing I would want to point out on this

dangerousness is that the District of Arizona and the Southern

District of Florida are very similar in that they have a very

multicultural population and many people who may fear law

enforcement and fear immigration consequences if they come in

contact with law enforcement.

And the defendant has shown in the instant case that he

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preyed on a vulnerable child, a child he knew who lived in

Mexico and crossed the border into the United States to, I

would submit, Your Honor, because he believed that she would

not report him for immigration consequences, and I would

submit, Your Honor, that all the reasons why the District of

Arizona was a place in which the defendant was able to commit

his activity and his crimes, those circumstances also exist

here in the Southern District of Florida.

The defense has argued for home confinement but, Your

Honor, we do not believe that would reasonably assure the

safety of the community.

He could leave his house. A monitor does not confine

him into his house. As Your Honor has pointed out, he went

27 years and this happened. He has done three months. There

are still many more months. Who knows what could happen, and

given the danger he poses to the community, I don't believe

that that is a risk that could be mitigated with a home

monitor.

THE COURT: Mr. Jacobs, do you want to respond?

MR. JACOBS: Yes, Your Honor.

So, one thing that bothers me, Your Honor, is if

Mr. Mitchell, like so many of our clients and so many

defendants who appear before you, if he had even one thing in

his criminal history, we wouldn't even be having this

discussion. But the fact that he has no criminal history and

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the fact that he has spent three months under a bond that the

state agreed to in Arizona, allowed him to travel across the

country to Miami where he has done all the right things for

three months, to not consider that or to heavily discount that,

I think is -- it's just wrong under the Bail Reform Act.

I think it must be considered and I think it weighs

heavily in favor of a bond.

He has been on a bond. He has shown that he has done

well on a bond and, therefore, he should receive another bond.

I -- it just bothers me, Your Honor, that the

Government talks about all of this potential for future

criminal conduct while on bond, and, yet, he has demonstrated

over the last 90 days that he hasn't come close to committing

any future criminal conduct. He has abided by the terms of his

bond and giving him a federal bond that is substantially

similar to a state bond, all the evidence shows that he will

continue to comply.

I think that's the only thing I needed to respond to,

Your Honor. Thank you.

THE COURT: Okay. All right. I am going to recess for

a minute. I have meant that I wanted to keep an open mind and

come in here and I want to give this another thought before I

make findings and determinations and we will be right back.

COURT SECURITY OFFICER: All rise.

(Brief recess.)

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THE COURT: Thank you for everyone's patience. It is,

obviously, an important decision, you can all be seated, and

one that I don't take lightly.

There are -- Mr. Jacobs, I am going to enter an order

of detention, and I will explain why, but more fulsome

explanation will be in my written order because I would

anticipate whichever way this was decided that one side or the

other would want to appeal it, so I will have a fulsome written

order.

The inquiry is two-fold. Does he present a danger to

the community or a risk of flight? Yes and yes. So, the risk

of flight by preponderance, the Government here has shown and

danger to the community by clear and convincing objective

evidence. That doesn't end my inquiry.

Are there conditions that would reasonably assure us?

As I have indicated, I am not holding him on risk of

flight. I think the conditions here would be adequate to

reasonably support his appearance in court.

I have very heavily considered Ms. Mitchell's testimony

and her appearance here in court as well as everything that,

again, I think I know about Mr. Mitchell because it's not

meaningfully disputed by anybody, including the factors that I

listed, his employment history and so forth. But with the

color that Ms. Mitchell provided me about his education and

background and the conditions that you have presented and

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argued are as stringent as they can possibly be and ultimately

the question comes down for me, do I think that even with a

third-party custodian, that is, his parents and the house that

he has been in, do I think that -- do I find that that is

enough to reasonably assure the safety of the community, and

here I find that it is not for several reasons.

It depends, in fact, on human compliance.

I understand your point and it is very well made that I

have evidence that he has complied. I have a very small litmus

test of where he has complied these last 90 days.

I don't know on a different record if it was longer if

it would be more meaningful to me. I suspect, candidly, that

it might not be because the -- there is a certain amount of

unpredictability. There is an absence of indicators in his

background that would suggest that this criminal activity was

likely afoot or anything else, and that is another piece,

frankly, that makes it very difficult for me to assess and give

meaningful value to the opportunity for a third-party custodian

to mitigate against the very significant risk that Mr. Mitchell

presents to the community.

So, I would do a better way of explaining it in the

written order, but I wanted you to understand the rationale,

and if you think that I have misunderstood it -- although,

honestly, I went back to the memoranda and reminded myself of

two facts. I know we didn't go too far down any factual

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proffer but the fact that when he came home and saw law

enforcement he accelerated past his apartment complex and the

fact that when he took the victim out of the car he draped her

with a jacket to conceal the handcuffs, and my point being that

I have, I hope, considered this record as fulsome as I can, and

notwithstanding my finding that he presents a danger by clear

and convincing evidence, I have considered all of the

conditions and I make the determination here that a third-party

custodian under this circumstance would not mitigate that risk.

So I will enter a written order and this is why I try

to do all those other proceedings before the detention hearing

because we have otherwise forgotten to now take up the removal

hearing.

So, Mr. Mitchell, that's my ruling. I will enter a

written order. I want to, again, acknowledge Ms. Mitchell for

being here under very difficult circumstances. I credit your

testimony. I appreciate the support you have shown your son

and hope that you will continue to do so because he is going to

need it. So I don't want you to think I minimize or discredit

what you said to me here today. I don't.

Okay. But with that, I think that is all we have left

to do in this case, Ms. Cha, unless there is anything else.

MS. CHA: Nothing else from the Government.

THE COURT: Okay. I will enter the order of

commitment.

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Mr. Jacobs, is there anything else?

MR. JACOBS: No, Your Honor, thank you.

THE COURT: I had an unusually excellent detention

hearing. Notwithstanding the result, I understand that you and

Mr. Mitchell may be disappointed in the ruling, but I am really

very grateful, frankly, for both the evidentiary and legal

presentation that you have made.

MR. JACOBS: Thank you, Your Honor.

(Proceedings were concluded.)

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C E R T I F I C A T E

I, Patricia Diaz, Registered Professional Reporter,

in and for the United States District Court for the Southern

District of Florida, do hereby certify that I transcribed from

digital audio recording the proceedings had the 1st day of

August, 2022, in the above-mentioned court; and that the

foregoing transcript is a correct and complete transcript of

said digital audio recording.

August 22, 2022 /s/Patricia Diaz _____

DATE PATRICIA DIAZ, FCRR, RPR, FPR

Official Court Reporter

United States District Court

400 North Miami Avenue, 11th Floor

Miami, Florida 33128

(305) 523-5178

Case 1:22-mj-03273-MD Document 13 Entered on FLSD Docket 08/23/2022 Page 39 of 39