USA v. Loaiza

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 18-cr-134-01-PB
Tasha Loaiza
REPORT AND RECOMMENDATION
On November 5, 2018, the defendant entered a guilty plea to
the charge of Aiding and Abetting Distribution of Fentanyl in
violation of 21 U.S.C. §§ 841(a), 841(b)(1)(C), and 18 U.S.C. §
2. 	On November 6, 2018, the defendant, who is currently
detained, filed a Motion for Bail Hearing and Conditional
Release. 	(Doc. No. 17). 	Subsequently the matter was referred
to the Magistrate Judge for resolution. 	(Endorsed Order Dated
Nov. 8, 2018). 1 	The undersigned heard argument on the motion for
1 There is an open question as to whether a magistrate judge
must resolve a post-plea motion for release by Report and
Recommendation or may simply resolve the matter by order.
Compare United States v. Blechman, No. 10-40095-01/02-SAC, 2011
WL 2473735, at *12 (D. Kan. June 22, 2011) (magistrate judge is
not a “judicial officer” under § 3141(b) with authority to issue
an order of release or detention following sentencing) with
Gov't of Virgin Islands v. Clark, 763 F. Supp. 1321, 1322
(D.V.I. 1991) ("Under 18 U.S.C. § 3141(b), a judicial officer of
a court of original jurisdiction over an offense, e.g., a United
States magistrate judge, has the power to 'order that, pending
imposition or execution of a sentence a person be released or
detained under this chapter.'")(ellipsis omitted), aff’d, 989
F.2d 487 (3d. Cir. 1993). 	In an abundance of caution, the court
will issue a Report and Recommendation in this matter.
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conditional release on November 16, 2018, at which the
government objected to the defendant’s release.
I. 	Applicable Legal Standard
The defendant agrees that 18 U.S.C. § 3143(a)(2) applies to
the instant request for conditional release after the entry of a
guilty plea. 	Section 3143(a)(2) provides as follows:
(2) The judicial officer shall order that a
person who has been found guilty of an offense in
a case described in subparagraph (A), (B), or (C)
of subsection (f)(1) of section 3142 and is
awaiting imposition or execution of sentence be
detained unless—
(A)
(i) the judicial officer finds there is a
substantial likelihood that a motion for
acquittal or new trial will be granted; or
(ii) an attorney for the Government has
recommended that no sentence of imprisonment
be imposed on the person; and
(B) the judicial officer finds by clear and
convincing evidence that the person is not
likely to flee or pose a danger to any other
person or the community.
18 U.S.C. § 3143(a)(2)(A)-(B). 2
Defense counsel agrees that neither subsection (a)(2)(A)(i)
nor (a)(2)(A)(ii) applies in this case. 	Given that the statute
2 The defendant concedes that she has been found guilty of
an offense described in 18 U.S.C. § 3142(f)(1)(C), and is
therefore subject to § 3142(a)(2).
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provides that “[t]he judicial officer shall order that a person
. . . be detained unless” one of those two subsections applies,
it would appear the court lacks statutory authority to release
the defendant pending sentencing. 	Nonetheless, the defendant
advances two arguments as to why the court should release her.
A. 	RELEASE IS AUTHORIZED UNDER 18 U.S.C. § 3145(c)
Despite not satisfying the requirements of Section
3143(a)(2), the defendant maintains that the court has
discretion to release her under 18 U.S.C. § 3145(c). 	Section
3145(c) provides as follows:
(c) Appeal From a Release or Detention Order.—
An appeal from a release or detention order,
or from a decision denying revocation or
amendment of such an order, is governed by the
provisions of section 1291 of title 28 and
section 3731 of this title. The appeal shall
be determined promptly. A person subject to
detention pursuant to section 3143(a)(2) or
(b)(2), and who meets the conditions of
release set forth in section 3143(a)(1) or
(b)(1), may be ordered released, under
appropriate conditions, by the judicial
officer, if it is clearly shown that there are
exceptional reasons why such person’s
detention would not be appropriate.
18 U.S.C. § 3145(c).
It is unclear from the statutory language whether § 3145(c)
was intended to apply only to appeals of a release or detention
order, or whether it also applies at the district court level.
Most – but not all – decisions of district courts in this
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circuit to consider the issue have cited the unpublished
decision of United States v. Weiner, No. 92-1708, 1992 WL 180697
(1st Cir. July 31, 1992) for the proposition that a district
court may apply the “exceptional reasons” provision of 18 U.S.C.
§ 3145(c). Compare United States v. Farlow, 824 F. Supp. 2d 189,
193 (D. Me. 2011) (applying § 3145(c) in district court
proceeding); United States v. Fournier–Olavarria, 796 F. Supp.
2d 285, 289 (D.P.R. 2011) (same); United States v. Cameron, 756
F. Supp. 2d 148, 151 (D. Me. 2010) (same); 	United States v.
Kenney, 2009 WL 5217031, at *1 (D. Me., Dec. 30, 2009) (same)
with United States v. Correia, 17 F. Supp. 3d 125, 127 (D. Mass.
2014) (§ 3145(c) does not apply in district court proceeding). 3
It is also worth noting that other courts of appeals to consider
the issue have similarly ruled that § 3145(c) applies in
district court matters. 	See United States v. DiSomma, 951 F.2d
494 (2d Cir. 1991); United States v. Goforth, 546 F.3d 712 (4th
Cir. 2008); United States v. Carr, 947 F.2d 1239 (5th Cir.
1991); United States v. Christman, 596 F.3d 870 (6th Cir. 2010);
United States v. Herrera-Soto, 961 F.2d 645 (7th Cir. 1992);
3 See also United States v. DiMattina, 885 F. Supp. 2d 572,
587 (E.D.N.Y. 2012) (§ 3145(c) does not apply in district court
proceedings); United States v. Rausch, 746 F. Supp. 2d 1192,
1195-98 (D. Colo. 2010) (same); United States v. Chen, 257 F.
Supp. 2d 656, 659-60 (S.D.N.Y. 2003) (same); In re Sealed Case,
242 F. Supp. 2d 489, 491 (E.D. Mich. 2003) (same).
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United States v. Mostrom, 11 F.3d 93 (8th Cir. 1993); United
States v. Garcia, 340 F.3d 1013 (9th Cir. 2003); United States
v. Jones, 979 F.2d 804 (10th Cir. 1992); United States v.
Meister, (11th Cir. 2013). Without taking a position on this
legal issue, the court will assume § 3145(c) applies in this
case.
The First Circuit has stated that the “exceptional reasons”
standard in § 3145(c) requires that that the defendant establish
that there are “a unique combination of circumstances giving
rise to situations that are out of the ordinary.” United States
v. Weiner, No. 92-1708, 1992 WL 180697, at *3 (1st Cir. July 31,
1992) (quoting United States v. DiSomma, 951 F.2d 494, 497 (2d
Cir.1991)). 	The Eighth Circuit has similarly held that
“‘[e]xceptional reasons’ must include something that is ‘clearly
out of the ordinary, uncommon, or rare.’” 	United States v.
Helder, No. 05–00125–CR–W–DW, 2006 WL 4080952, at *2 (W.D. Mo.
Sept. 21, 2006) (citing United States v. Brown, 368 F.3d 992,
993 (8th Cir. 2004)) (internal citation omitted). 	Personal
reasons, such as caring for family members, being gainfully
employed, and caring for young children with unique health
problems are not extraordinary reasons. United States v. Green,
250 F. Supp. 2d 1145, 1149 (E.D. Mo. 2003).
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In support of her argument “that there are exceptional
reasons why . . . 	detention would not be appropriate” in this
case, the defendant recites the arguments for release outlined
in the motion for conditional release. 	The court finds that
none of the reasons recited by defendant satisfy the
“extraordinary reasons” standard. 	Thus, the defendant’s release
is not justified under § 3145(c).
B. 	THERE ARE CLEAR AND CONVINCING REASONS TO RELEASE THE
DEFENDANT
Alternatively, the defendant argues that the court has
discretion to release the defendant if she presents clear and
convincing evidence that she is not likely to flee or pose a
danger to the safety of any other person or the community. 	The
court disagrees that it has the discretion to apply the clear
and convincing standard to a defendant who falls under 18 U.S.C.
§ 3143(a)(2) and cannot satisfy either subsection (a)(2)(A)(i)
or (a)(2)(A)(ii). 	Thus, this argument fails as a matter of law.
Even if, however, the court has the discretion to apply the
clear and convincing standard in this case, it finds the
defendant failed to meet it for the reasons more specifically
stated on the record. 	Without listing all the factors favoring
detention, the court notes the following:
*The weight of the evidence is conclusive as the defendant has
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now entered a guilty plea;
*The defendant was previously released on bail for the purpose
of participating in an inpatient treatment program and was
discharged in approximately one month for rules violation and
drug use;
*Upon being discharged from the treatment program, the defendant
absconded for a two-month period until her arrest on September
19, 2018;
*She relapsed while a fugitive and had two positive drug tests
while incarcerated following her September arrest;
*She has prior state charges for bail jumping;
*The defendant has not been employed since 2016.
CONCLUSION
Based on the foregoing, the court recommends that the
district judge deny the defendant’s motion for conditional
release (Doc. No. 17).
Any objections to this Report and Recommendation must be
filed within fourteen days of service of this notice. 	See Fed.
R. Crim. P. 59(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Crim. P. 59(b)(2).
/s/ Daniel J. Lynch
Daniel J. Lynch
United States Magistrate Judge
November 20, 2018
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cc: 	Bjorn R. Lange, Esq.
Anna Dronzek, AUSA
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