United States v. Lorenzana-Cordon

• Court: District Court, District of Columbia
• Decided: August 24, 2015
• Docket: Criminal No. 2003-0331
• Status: Published

Opinion

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 5 364, 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