IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:11-mj-0565 

 

Catarino Zavala, : Magistrate Judge Kemp

Defendant. :

 

 DETENTION ORDER

The defendant, Catarino Zavala, accompanied by counsel,

appeared for a detention hearing on July 18, 2011. After the

hearing, the Court decided that the defendant should be detained

pending further proceedings. This order explains why.

On June 8, 2011, defendant was charged in an indictment

returned in the Eastern District of Texas with being part of a

conspiracy to manufacture, possess and distribute marijuana,

cocaine and methamphetamine. Based on the indictment, the Court

is entitled to conclude that probable cause exists to believe he

committed these offenses. That gives rise to a presumption of

detention, explained as follows.

Legal Standard Applicable. The United States' request

for detention is based primarily upon the presumption that

arises under 18 U.S.C. §3142(e) for persons charged with serious

drug offenses, certain firearms offenses, and certain offenses

involving minor victims. That statute states, in pertinent part,

that:

 Subject to rebuttal by the person, it

 shall be presumed that no condition or

 combination of conditions will reasonably

 assure the appearance of the person

 as required and the safety of the

 community if the judicial officer

 finds that there is probable cause to

 believe that the person committed an

Case: 2:11-mj-00565-TPK Doc #: 8 Filed: 07/19/11 Page: 1 of 5 PAGEID #: <pageID>
 offense for which a maximum term of

 imprisonment of ten years or more is

 prescribed in the Controlled Substances

 Act (2l U.S.C. 801 et seq)...[or] an 

offense under section 924(c)...of this

title... or an offense involving a minor 

 victim [under selected statutes].”

Under 18 U.S.C. §3142(f), if detention is based upon facts

supporting a finding that no condition or combination of

conditions will reasonably assure the safety of any other person

and the community, such facts must be proved by clear and

convincing evidence. However, if detention is based upon a

finding that no condition or combination of conditions will

reasonably assure the appearance of the person as required, proof

by a preponderance of the evidence is sufficient.

 The proper effect to be given to this rebuttable

presumption is discussed in United States v. Jessup, 757

F.2d 378 (1st Cir. 1985). There, the Court indicated that

the presumption shifts the burden of producing evidence to

the defendants, and also remains in the case even after the

defendants have satisfied their production burden. Further, in a

narcotics case, because the history of the statute indicates that

Congress had in mind a specific set of circumstances relating to

drug offenses which led to the adoption of the rebuttable

presumption, it is appropriate for a Court addressing the

issue of detention to determine how closely the facts of the

case before the Court parallel those of the "Congressional

paradigm," or profile of those drug offenders who present the

most serious risk of flight or danger to the community. That

paradigm, in brief, indicates a Congressional awareness of

the lucrative nature of drug trafficking, and the fact that

many persons engaged in that occupation have substantial ties

outside the United States. Consequently, even if a high

-2-

Case: 2:11-mj-00565-TPK Doc #: 8 Filed: 07/19/11 Page: 2 of 5 PAGEID #: <pageID>
monetary bond is set for such persons, they are able, through

the use of proceeds derived from drug trafficking, to post

such bond, and are also able to flee the country because of

their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statutes, the defendant need not attempt to prove that

he or she did not commit the crime as charged. Rather, that

burden can be met by introducing evidence of other appropriate

factors as described in 18 U.S.C. §3142(g), including personal

history and characteristics relating to character, family ties,

employment, financial resources, length of residence in the

community, community ties, past conduct, history relating to drug

or alcohol abuse, criminal history, and record concerning

appearance in court proceedings. If any such evidence is

introduced, the presumption cannot be used by the Court as

conclusive evidence that the defendant poses an unacceptable risk

to the community or that conditions will not reasonably assure

the defendant’s appearance. United States v. Dominguez, 783 F.2d

702 (7th Cir. 1986). However, that presumption still remains in

the case to be given whatever weight the Court deems appropriate.

The United States called one witness at the hearing, ICE

agent Justin Marshall, who testified concerning a number of

recorded telephone conversations which occurred between April 27,

2011 and May 16, 2011, and which either originated from or were

received by a phone used by a co-defendant, Leodegario Sanchez. 

The short version of his testimony is that Mr. Zavala and Mr.

Sanchez were conversing on a regular basis about narcotics

trafficking, and in a way that indicted that Mr. Zavala was a

middleman arranging sales from Sanchez to others and that he was

very familiar with how drug trafficking deals typically operated. 

Additionally, fairly significant quantities of narcotics,

-3-

Case: 2:11-mj-00565-TPK Doc #: 8 Filed: 07/19/11 Page: 3 of 5 PAGEID #: <pageID>
particularly methamphetamine, were being discussed regularly.

According to the Pretrial Services report, Mr. Zavala has

lived in the Dallas, Texas area for most of his life. He was

residing in Columbus for only a short time before his arrest

here. His mother and other family members live in Columbus. He

has not been employed for the past several weeks but has held

regular employment in the past.

Defendant has used marijuana since age 17. He has attended

counseling for substance abuse but continues to use marijuana. 

He has been convicted in the past for offenses related to

marijuana possession, and has had probation revoked on several

occasions. He has also has warrants issued for failure to

appear, has had several bond forfeitures, and is currently the

subject of an active traffic warrant from Miamisburg, Ohio. He

has used a number of aliases, dates of birth, and social security

numbers when arrested in the past.

Here, in addition to the presumption in favor of detention

created by the indictment, the Court notes that the evidence

against Mr. Zavala is strong and that he is facing significant

prison time if convicted. His ties to the central Ohio area are

of short duration. He has a history of both substance abuse and

drug-related convictions. His record of failures to appear,

probation violations, and the use of false identifying

information is particularly troubling. The few positive factors

in the record - the absence of any history of violent crimes and

the availability of place to reside if released - do not outweigh

the negative factors or overcome the presumption created by the

indictment. Therefore, the Court detained Mr. Zavala pending

further proceedings.

The defendant was advised of his right to seek review of

this order by a United States District Judge pursuant to 18

U.S.C. §3145(b).

-4-

Case: 2:11-mj-00565-TPK Doc #: 8 Filed: 07/19/11 Page: 4 of 5 PAGEID #: <pageID>
/s/ Terence P. Kemp 

United States Magistrate Judge

-5-

Case: 2:11-mj-00565-TPK Doc #: 8 Filed: 07/19/11 Page: 5 of 5 PAGEID #: <pageID>