United States v. Lorenzana-Cordon ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES,
v.
ELIU LORENZANA-CORDON, Criminal Action No. 03-331-13 (CKK)
Defendant.
MEMORANDUM OPINION
(August 24, 2015)
This matter comes before the Court upon Defendant’s [598] Motion to Modify Conditions
of Pretrial Detention. Upon consideration of the Parties’ submissions,1 case law, and applicable
statutory authority, the Court shall DENY Defendant’s Motion for the reasons expressed below.
I. BACKGROUND
On April 2, 2009, a federal grand jury returned an indictment charging Defendant Eliu
Elixander Lorenzana-Cordon with conspiracy to import over five kilograms of cocaine into the
United States in violation of 21 U.S.C. §§ 952, 959, 960, and 963. The indictment also carries a
criminal forfeiture allegation pursuant to 21 U.S.C. §§ 853 and 970. Defendant remained a fugitive
for approximately two-and-a-half years in Guatemala and was arrested on this indictment in
Guatemala on November 8, 2011. After fighting extradition for approximately three-and-a-half
years, Defendant was extradited to Washington, D.C. on April 30, 2015. Defendant made an initial
appearance before Magistrate Judge Alan Kay on May 1, 2015. At the initial appearance, the
Government moved to commit Defendant to the custody of the U.S. Attorney General. Defendant
1
Defendant’s Motion to Modify Conditions of Pretrial Detention (“Def.’s Mot.”), ECF No.
[598]; Government’s Opposition to Defendant’s Motion to Modify Conditions of Pretrial Release
(“Gov’t. Opp’n”), ECF No. [602]; Defendant’s Reply to Government’s Opposition to Defendant’s
Motion to Modify Conditions of Pretrial Detention (“Def.’s Reply”), ECF No. [607].
did not contest pretrial detention at the time and waived his right to a detention hearing.
Accordingly, Magistrate Judge Kay ordered Defendant detained. Following the initial appearance,
Defendant was paroled into the United States for the purposes of this case and an immigration
detainer was placed on Defendant. Defendant has been detained pending trial at the Central
Detention Facility of the District of Columbia Department of Corrections.
Defendant filed the present Motion to Modify Conditions of Pretrial Detention on July 7,
2015, requesting less restrictive supervision. Specifically, Defendant requests that he be permitted
to be restricted to a local extended stay hotel under the following conditions: (1) electronic
monitoring, (2) surrender of passport, (3) reporting to pretrial services, and (4) participation in the
high intensity supervision program. Def.’s Mot., at 1. Although Defense Counsel characterizes
Defendant’s request as a request for “detention outside of a D.C. jail-cell,” Def.’s Reply, at 1,
Defendant is in fact asking to be released under certain conditions. Accordingly, the Court will
review Defendant’s Motion as a request for release. As the Government filed its Opposition on
July 10, 2015, moving for a permanent order of detention, and Defendant filed a Reply on July 17,
2015, Defendant’s Motion is now ripe for the Court’s review.
II. LEGAL STANDARD
A person ordered detained by a magistrate judge may seek review of the detention order in
this Court. 18 U.S.C. § 3145. The Court reviews the detention issue de novo. 18 U.S.C. § 3142(e).
Pursuant to Section 3142(e)(3)(A) of Title 18 of the United States Code, if there is probable cause
to believe the defendant committed an offense under the Controlled Substances Act for which the
maximum term of imprisonment is ten years or more, the Court presumes—subject to rebuttal by
defendant—that “no condition or combination of conditions will reasonably assure the appearance
of the person as required and the safety of the community.” To determine whether a defendant has
overcome this presumption, the Court takes the following factors into consideration
2
(1) the nature and circumstances of the offense charged, including whether
the offense is a crime of violence or involves a controlled substance;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person; and
(4) the nature and seriousness of the danger to any person or the community
that would be posed by the person’s release.
See 18 U.S.C. § 3142(g).
III. DISCUSSION
A. Nature and circumstances of the offense charged
Defendant has been charged with a conspiracy to distribute five kilograms or more of
cocaine for importation into the United States, subjecting him to a mandatory minimum sentence
of 10 years and a maximum sentence of life imprisonment. Accordingly, the Court presumes that
no condition or combination of conditions will reasonably assure Defendant’s appearance as
required and the safety of any person and the community. 18 U.S.C. § 3142(e)(3)(A).
More specifically, from approximately March 1996 to at least November 2007, Defendant
is alleged to have been an organizer and leader in an international scheme of cocaine trafficking
from Colombia to El Salvador, Guatemala, Mexico, and, ultimately, into the United States with an
estimated retail value of more than a billion dollars. Gov’t Opp’n, at 3. The Government proffers
that once the cocaine reached Guatemala it was “received, inventoried, stored and further
distributed for importation into the United States on properties owned and utilized by the
[trafficking organization], including the Defendant.” Id. The trafficking organization would also
utilize “cocaine-laden aircraft which would land on clandestine airstrips located on or near
properties owned and utilized by the [trafficking organization], including the Defendant, to receive
inventory, store, and further distribute the cocaine for importation into the United States.” Id. The
Government further proffers that Defendant
3
would personally negotiate, receive loads of cocaine on behalf of the [trafficking
organization] on properties owned and utilized by the Defendant, as well as sell
these loads of cocaine to other drug traffickers. Further, the Defendant would use
warehouses on his property to store and inventory the cocaine for further
importation into the United States. The Defendant had multiple responsibilities
over the course of the conspiracy, including . . . coordinating, overseeing, and
supervising other members of the [trafficking organization] to ensure the safe
transportation of shipments of cocaine to Mexican drug traffickers in Guatemala
knowing or intending that it would be further distributed to the United States.
Id. In addition, the Government anticipates introducing evidence at trial that Defendant and other
members of the conspiracy carried weapons during their operations. Id. at 4.
Narcotics trafficking is a serious charge and carries with it serious penalties. Defendant
faces a mandatory minimum sentence of ten years if convicted and, given his alleged leadership
role and the large quantity of narcotics trafficked, he faces an estimated Advisory Guidelines range
of life imprisonment. Id. at 8 (citing USSG § 2d1.1). Defendant has not pointed to any evidence
to rebut this characterization of the nature and circumstances of the offense charged. Such severe
penalties provide Defendant a substantial incentive to flee the United States. See United States v.
Hong Vo, 978 F. Supp. 2d 41, 43 (D.D.C. 2013) (holding that the serious nature and circumstances
of the offenses charged against defendant and the punishments provided for those offenses strongly
favor detention because of the significant incentive to flee the United States). Accordingly, the
Court finds that this factor favors detention.
B. Weight of the evidence against the Defendant
Where the weight of evidence of guilt is strong, it provides a defendant additional incentive
to flee. See United States v. Medina Coronado, 588 F. Supp. 2d 3, 4-5 (D.D.C. 2008) (finding
detention warranted where government’s evidence was strong against the defendant); see also
United States v. Vergara, 612 F.Supp.2d 36, 37-38 (D.D.C. 2009). Defendant contends that the
Government’s evidence against Defendant is not strong because it is stale, does not link Defendant
to past seizures of narcotics, does not establish Defendant’s specific intent to distribute cocaine to
4
the United States, and “relies heavily on cooperating witnesses seeking sentence reductions.”
Def.’s Reply, at 2. The Court finds, to the contrary, that the Government’s evidentiary proffer for
the purposes of this motion establishes that the weight of the evidence against Defendant favors
detention. The evidence the Government will introduce at trial is not “over 15 years old,” as
Defendant contends, Def.’s Mot., at 5, but “goes up to and includes 2009,” Gov’t Opp’n, at 9. In
addition, the Government intends to introduce “numerous co-conspirators who will testify about
multiple drug transactions that they conducted with the Defendant personally.” Id. Testimony
from these co-conspirators will not be the only evidence introduced by the Government, as the
Government will also introduce evidence from “Guatemalan judicially authorized wiretap[s], and
the seizure of various drug ledgers, among other evidence.” Id. To the extent that the Government
has not, at this stage, proffered specific evidence as to certain elements of the offense, the Court
notes that the indictment alone provides probable cause to believe that Defendant committed the
charged offense. See United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (acknowledging
the government’s reliance on an indictment to demonstrate probable cause and holding that “the
indictment alone would have been enough to raise the rebuttable presumption that no condition
would reasonably assure the safety of the community”). Moreover, absent any contradictory
evidence from the defendant, the D.C. Circuit has approved the government’s use of an evidentiary
proffer in support of a Defendant’s detention. See id. Accordingly, the Court finds that the second
factor also weighs in favor of detention.
C. History and characteristics of the Defendant
With regard to the third factor, federal courts have long recognized that “flight to avoid
prosecution is particularly high among persons charged with major drug offenses,” because “drug
traffickers often have established substantial ties outside the United States . . . [and] have both the
resources and foreign contacts to escape to other countries.” United States v. Alatishe, 768 F.2d
5364, 370 n.13 (D.C. Cir. 1985) (citing S. Rep. No. 98-225 at 20 (1983), reprinted in 1984
U.S.C.C.A.N. 3203)). Here, Defendant is a Guatemalan citizen who has no immigration status in
the United States and no known contacts in the United States other than possibly those involved
in the drug trafficking conspiracy. Gov’t Opp’n, at 10. By contrast, Defendant has extensive
contacts in Guatemala and access to substantial amounts of money due to his leadership role in the
billion-dollar drug trafficking conspiracy. Moreover, Defendant previously was a fugitive for two-
and-a-half years and the Government proffers that witnesses will testify that Defendant’s father
previously paid officials to secure Defendant’s release from custody. Id. at 2-3, 4. Although
Defendant’s father is now detained in the United States, some of Defendant’s close family
members remain fugitives in this case. Id. at 3. In short, Defendant has the motive and means to
flee the United States.
Defendant notes that Defendant’s family business is dedicated to agriculture and cattle and
“is a proud tradition that sustained hundreds of families that worked for, or based their businesses
on the success of the Lorenzana family.” Def.’s Reply, at 4. Defendant also notes that he is “a
respected member of his community and does not present himself to this Court with any allegations
of substance abuse” and “no allegations of previous criminal convictions.” Id. Even accepting
Defendant’s assertions as true, the Court does not find that they change the Court’s analysis and
finding that Defendant’s financial resources and ties to Guatemala increase Defendant’s risk of
flight. Accordingly, the Court finds that this factor weighs in favor of detention. See Hong Vo,
978 F. Supp. 2d at 46 (finding detention warranted where defendant had access to substantial assets
overseas and connections to Vietnam, demonstrating her ability to flee the United States).
D. Nature and seriousness of the danger to any person or the community
Finally, federal courts have long recognized that narcotics trafficking and distribution pose
a serious danger to the community. See, e.g., United States v. McDonald, 238 F.Supp.2d 182, 186
6
(D.D.C. 2002) (“the risk that a defendant will continue to engage in drug trafficking constitutes a
danger to the ‘safety of any other person or the community’” (quoting S. Rep. No. 98-225)). Courts
have also recognized that drug traffickers are likely to continue engaging in drug-related activities
if released. See id. In addition to the danger posed by Defendant given the nature of his crime,
the Government also notes that Defendant was arrested with weapons and has been known to bribe
Guatemalan officials. Gov’t Opp’n, at 12. The Government further proffers that witnesses will
testify “that they are fearful for their own and their family’s safety.”2 Id. at 3. Accordingly, the
Court finds this factor weighs in favor of Defendant’s detention.
Defendant contends that the release conditions he proposes “would ensure his continued
appearance for all court matters,” Def.’s Mot., at 4, and cites to two cases where the defendants
overcame the statutory presumption in favor of detention at issue here and were released on the
condition, among others, that they would be subject to electronic monitoring, id. (citing United
States v. Hudspeth, 143 F.Supp.2d 32 (D.D.C. 2001) and United States v. Karni, 298 F.Supp.2d
129 (D.D.C. 2004)). The Court finds the two cases cited by Defendant are by no means persuasive.
Unlike the present case, the defendant in Hudspeth had substantial personal and familial ties to the
District of Columbia and the evidence proffered against him was weak. Hudspeth, 143 F.Supp.2d
at 37. In Karni, although the defendant, like Defendant here, did not have any ties to the District,
the defendant was not charged with a crime of violence and was in no way linked with any violent
2
The Government also notes that “Defendant’s family have approached the family
members of a cooperating witness in Guatemala and threatened the cooperating witnesses’ [sic]
family.” Gov’t Opp’n, at 12. Defendant contends that unless the government can proffer specific
evidence and “identif[y] a witness who was allegedly threatened,” the Government cannot rely on
this information. Def.’s Reply, at 3. At this time, the Court will not request additional evidentiary
proffers of the Government because the Court finds the Government has presented sufficient
grounds for denying Defendant’s request to modify the conditions of pretrial release. Should the
alleged threats to witnesses became an important issue, the Court will request that additional
information about the witness threats be provided to the Court under seal.
7
crimes or weapons use. Karni, 289 F.Supp.2d at 132. Here, Defendant has been charged with a
dangerous crime, was arrested with weapons on hand, has strong evidence inculpating him, and
does not have any ties to the United States. Although electronic monitoring is a method for
monitoring a defendant’s whereabouts, it does not prevent a defendant from absconding.
Therefore, Defendant’s proposed conditions do not obviate the risk that Defendant might flee, nor
the danger Defendant presents to the community.
IV. CONCLUSION
For the foregoing reasons, the Court finds that Defendant Eliu Elixander Lorenzana-
Cordon has failed to rebut the presumption that no condition or set of conditions can reasonably
assure Defendant’s presence at trial and the safety of the community. Accordingly, the Court
DENIES Defendant’s [598] Motion to Modify Condition of Pretrial Detention.3 An appropriate
Order accompanies this Memorandum Opinion.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
3
Although not a factor in the Court’s decision to deny Defendant’s release, the Court also
notes that Defendant is subject to an immigration detainer and thus would be subject to
immigration detention if released.
8