1 See 18 U.S.C. § 3142(g) (the judicial officer shall “take into account the

available information concerning [the listed factors]”; FED. R. EVID. 1101(d)(3) (rules

of evidence inapplicable). See also United States v. Golding, 742 F.2d 840, 841-42

(5th Cir. 1984).

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

VS.

MI NA MALCOLM,

Defendant.

)

)

)

) CRIMINAL ACTION NO.

)

) 3:05-CR-229-G

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the defendant’s motion, under 18 U.S.C. §§ 3145(a) and

(b), to revoke or amend the magistrate judge’s detention order for the defendant

pending trial. Upon a de novo review of the detention hearing before United States

Magistrate Judge William F. Sanderson, the motion is denied for the reasons set forth

below.

I. AVAILABLE INFORMATION1

After initially being charged by complaint filed August 2, 2005, the defendant

appeared before Judge Sanderson on August 16, 2005 for a detention hearing. See

 

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2 Judge Sanderson noted in his order that “[t]he conduct of Defendant

reflected in the testimony and proffers made to the court indicate that she may be

subject to federal criminal charges in addition to the one charged in the present

complaint.” Detention Order at 3. Specifically, possible charges include violations of

8 U.S.C. § 1324 (bringing in and harboring certain aliens) and 8 U.S.C. § 1328

(importation of aliens for immoral purposes). Transcript of Preliminary and

Detentions Hearings Before the Honorable William F. Sanderson United States

Magistrate Judge (“Tr.”) at 30.

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generally Docket Sheet. The complaint charged the defendant with the offense of

knowingly attempting to transfer more than $10,000 in United States currency from

the United States with the intent to evade a currency reporting requirement in

violation of 31 U.S.C. §§ 5316(a)(1)(A) and 5332(a)(1).2 Criminal Complaint, 3:05-

MJ-327. After the detention hearing, Judge Sanderson determined that “no

condition or combination of conditions would reasonably assure the appearances of

Defendant as required.” Detention Order Pursuant to 18 U.S.C. § 3142(i)

(“Detention Order”) at 4.

On September 13, 2005, the defendant filed this motion for revocation or

amendment of the detention order. The government filed its response on

September 16, 2005.

II. ANALYSIS

When reviewing a pretrial release order, the district court “acts de novo and

makes an independent determination of the proper pretrial detention or conditions

for release.” United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985); see also

United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992), cert. denied, 507 U.S.

 

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940 (1993). This determination is based on the evidence presented to the magistrate

judge. See United States v. Baker, 703 F. Supp. 34, 36 (N.D. Tex. 1989).

A determination of detention may be based on either the likelihood of the

defendant’s appearance or the safety of others. Fortna, 769 F.2d at 249. Although

the defendant’s alleged criminal conduct does not suggest that she may pose a danger

to the community, the court need not reach that issue. The risk that the defendant

will not appear for trial is substantial enough, without more, to support the August 17

order of detention.

On the issue of appearance, “the judicial officer must determine that it is more

likely than not that no condition or combination of conditions will reasonably assure

an accused’s appearance.” United States v. Westbrook, 780 F.2d 1185, 1189 (5th Cir.

1986). 18 U.S.C. § 3142(g) lists the factors to be considered when making this

determination:

(1) The nature and circumstances of the offense charged,

including whether the offense is a crime of violence or

involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including --

(A) the person’s character, physical and

mental condition, 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 at court proceedings; and

 

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(B) 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

(4) the nature and seriousness of the danger to any person

or the community that would be posed by the person’s

release . . . .

18 U.S.C. § 3142(g).

Here, although the defendant has no criminal history, Tr. at 31, several other

factors weigh against the determination that a combination of conditions would

assure the appearances of the defendant. For instance, after arrests and seizures in

California of individuals involved in similar sexually oriented businesses, an

informant was told that if things in Dallas got as “hot” as they had in California, the

defendant would flee to Korea. Tr. at 30. This information regarding the risk of

flight was provided by a reliable informant who also correctly predicted that the

defendant would be attempting to transfer United States currency out of this country

via the U.S. mails on April 28, 2005. Tr. at 19-20. After the California arrests, the

defendant began sending even greater quantities of money overseas to Korea,

suggesting preparations for leaving the United States. Tr. at 38, 40. In addition to

the fact that her behavior suggests intimate knowledge of traveling illegally between

Korea and the United States, the defendant has no family ties here in Dallas. Tr. at

27, 46. As stated in the detention order,

 

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Although CIS [Citizenship and Immigration Services] has

seized Defendant’s Korean passport which precludes

Defendant from legally traveling outside the United States,

the ties which Defendant has to persons or organizations

which have successfully smuggled Korean aliens into the

United States strongly suggest that the mere fact that she

cannot depart the United States through legitimate

channels of international travel is no assurance that

Defendant could not leave the United States through

clandestine avenues.

Detention Order at 3 (emphasis in original). The court agrees with this conclusion. 

The defendant is neither a United States citizen (she is registered as a legal resident

alien), Tr. at 10, 27, 31, nor does she have employment in on-going business in the

Northern District of Texas after police raids of her sexually oriented businesses in

mid-August 2005. Due to this high risk of flight, the defendant’s motion to revoke

and/or amend the detention order is denied.

III. CONCLUSION

Taking all relevant factors into account, the court is not persuaded that there

exist any conditions for release which would reasonably assure the appearance of the

defendant pending trial on this charge. Because the risk of flight is dispositive of this

motion, the court need not discuss the issue of safety of the community. Accordingly,

the defendant’s motion for revocation or amendment of the magistrate judge’s order

is DENIED.

 

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SO ORDERED.

September 20, 2005.

 

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