UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO ROCHA, Defendant.
Case No. 19 CR 625
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
September 11, 2019
District Judge John Z. Lee
Magistrate Judge Gabriel A. Fuentes
MEMORANDUM OPINION AND ORDER
The government has moved to detain Defendant Francisco Rocha ("Defendant") pending his trial on a three-count indictment charging conspiracy to engage in unlawful firearms trafficking and to unlawfully bring firearms from Wisconsin to Illinois, in violation of 18 U.S.C. §§ 371, 922(a)(1)(A) and 922(a)(3) (Count I), along with substantive violations of Sections 922(a)(1)(A) (Count II) and 922(a)(3) (Count III). A detention hearing was held before the Court on September 10, 2019. As stated on the record, the Court is ordering the detention of Defendant based on the Court's findings that (1) by a preponderance of the evidence, there are no release conditions or combination of conditions that will reasonably assure Defendant's appearance in this matter as required,1 and (2) by clear and convincing evidence, there are no such conditions that will reasonably assure the safety of the community. See 18 U.S.C. § 3142(e). This Memorandum Opinion addresses the second of those findings in greater detail, and specifically why the Court is finding that no release condition will reasonably assure the safety of the community under the circumstances of this case, applying the statutory factors found in Section 3142(g).
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I. Background
A. Alleged Facts
The indictment alleges that Defendant enlisted his co-defendant, Kirk Valentine, into a scheme to purchase 19 handguns in the State of Wisconsin, using Valentine as a "straw purchaser" who is alleged to have falsely certified that he was the actual buyer of the firearms, so that Defendant could transfer the firearms to other, unnamed persons in the Northern District of Illinois. Indictment at 3-4. The indictment describes 19 separate firearms that Defendant allegedly caused to be purchased in March, April and May of 2018, by Valentine at Defendant's direction, at retailers in various Wisconsin towns including Onalaska, La Crosse, Holmen, and Sparta, and at gun shows in Onalaska and Union Grove. Valentine is alleged to have falsified, at Defendant's direction, U.S. Bureau of Alcohol, Tobacco and Firearms point-of-purchase documents affirming that he was the actual buyer. The indictment describes the firearms as follows:2
| # | FIREARM TYPE | SERIAL NUMBER |
| 1 | LCP Ruger .380 pistol | 372096520 |
| 2 | LCP Ruger .380 pistol | 371956237 |
| 3 | LCP Ruger .380 pistol | 372096541 |
| 4 | Century Arms Draco 7.62 by 39 caliber pistol | RASA47P002299 |
| 5 | Glock G20 Gen 4 10mm pistol | BGRY050 |
| 6 | Taurus PT809 9mm pistol | TG059031 |
| 7 | Taurus G2C 9mm pistol | TLM96308 |
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| 8 | Taurus PT709 9mm pistol | TJY50709 |
| 9 | Glock 42 .380 caliber pistol | ACWV128 |
| 10 | Smith & Wesson BG380CT .380 caliber pistol | KEP2273 |
| 11 | Master Piece Arms MPA930SST 9mm pistol | FX04856 |
| 12 | Master Piece Arms MPA930SST 9mm pistol | FX04866 |
| 13 | Smith & Wesson BG380 .380 caliber pistol | KFB0458 |
| 14 | Glock G29G4 10mm pistol | BDWR359 |
| 15 | Glock G20G4 10mm pistol | BHEH168 |
| 16 | EAA Windicator .357 caliber revolver | 173625 |
| 17 | Springfield XDE 9mm pistol | HE911618 |
| 18 | Glock G23 FDE .40 caliber pistol | BBAV537 |
| 19 | Taurus G2C 9mm pistol | TLN54605 |
At the detention hearing, the government introduced six Chicago police arrest reports reflecting law enforcement's recovery of seven of the above firearms (matched by serial numbers in the police report to the serial numbers in the indictment) from six persons in incidents in which the Chicago police arrested those six persons on criminal charges. See Govt. Exs. 1-6. Based on allegations in the indictment and in the six arrest reports, further relevant details about the recovery of these seven handguns from the indictment are set forth below:
| # (from above table) | Initial sale date in Wisconsin | Recovery date in Chicago | Relevant information |
| 3 | 3/8/18 | 5/7/18 | Police found the LCP Ruger .380 pistol, along with three live rounds, hidden in the waistband of a man they arrested at 6:45 p.m. at 1719 N. Keeler Ave. for unlawful use of a firearm. The report stated that the man admitted to membership in a street gang. |
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| 9 | 5/17/18 | 5/27/18 | Police found the Glock 42 .380 pistol, loaded with a full 10-round magazine, on the floor of a car near where a man stood at 11:25 p.m. at 251 E. Pearson St., near Lake Shore Park. The man, who was arrested for unlawful use of a firearm, told police he was active in a street gang and received the weapon from fellow gang members whom he refused to identify. |
| 11 | 5/19/18 | 5/31/18 | Police found the two Master Piece Arms MPA 930SST 9mm pistols in their cases in a plastic bag a man was seen leaving in an open doorway as police approached him at 1:48 p.m. at 3204 N. Cicero Ave. Police also recovered the two 30- round capacity magazines and 21 live rounds, along with two "flash suppressors" (commonly known as "silencers"). Police arrested the man for unlawful use of a firearm and possession of a controlled substance after they recovered narcotics from his vehicle nearby. They also recovered a Glock .40- caliber pistol (which was not among the 19 indictment firearms), loaded with 14 live rounds. |
| 12 | 5/19/18 | 5/31/18 | See #11 above. |
| 1 | 3/8/18 | 6/2/18 | Police found the LCP Ruger .380 pistol in the lap of a man asleep at the wheel of a parked car and next to the firearm's magazine and an empty liquor bottle at 8:21 a.m. at 7199 W. Foster Ave. The man told police the gun belonged to his mother. Based on his having been convicted of an earlier felony, he was charged with unlawful use of a weapon by a felon. |
| 7 | 5/13/18 | 6/17/18 | Police heard shots fired just after midnight near 1316 N. Rockwell St. and investigated on foot, catching up with a 17-year-old boy and learning that two other officers had seen the boy throwing the recovered Taurus G2C pistol (with an empty 12- round magazine) to the ground. Police arrested him for unlawful use of a weapon and reckless discharge of a firearm. According to the police report, the boy was known to police as a street gang member. |
| 2 | 3/8/18 | 7/7/18 | Police found the LCP Ruger .380 pistol (loaded with six live rounds) and an attached laser sight from a dresser drawer of a bedroom during execution of a search warrant at 11:38 a.m. at 1323 N. Campbell Ave. They arrested the man who lived in the apartment, and who was in the bedroom at the time of the search, on two counts of unlawful use of |
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| a weapon by a felon, in that (1) police found a second handgun in another dresser drawer (a Smith & Wesson 9mm pistol loaded with 15 live rounds), and (2) the man was a convicted felon. |
B. Legal Backdrop
Under the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3156, a defendant may be detained in custody pending trial "[i]f, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial." 18 U.S.C. § 3142(a)(4), (e)(1). The judicial officer's conclusion that no conditions of release can reasonably assure the safety of other persons and the community must be supported by clear and convincing evidence. 18 U.S.C. § 3142(f). The Bail Reform Act generally expresses a "preference for release," in that Section 3142(e) requires the Court to consider the possibility of less restrictive alternatives to detention. United States v. Fattah, 351 F. Supp. 3d 1133, 1136-37 (N.D. Ill. 2019), citing United States v. Infelise, 934 F.2d 103, 105 (7th Cir. 1991). "In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755 (1987). In determining whether there are conditions of release which will reasonably assure the safety of any other person and the community, we are to take into consideration the factors set forth in § 3142(g):
(g) Factors to be considered.—The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of Section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
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(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
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) (emphasis added).
As to dangerousness, a court's finding that detention is warranted need not rest on evidence of some violent act not charged in the indictment. United States v. Arvanitis, 667 F. Supp. 593, 598-99 (N.D. Ill. 1987). Rather, the Court may look to the nature of the offenses charged in the indictment as part of its examination of whether the...
