United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
before the Court is Defendant Albert Lopez's Motion to
Modify Conditions of Release, (ECF No. 1724). Lopez files
this Motion on his own behalf and on behalf of three of his
co-defendants: Bradley Campos, Diego Garcia, and Cesar
Morales. The Government filed a Response, (ECF No. 1731), and
Lopez filed a Reply, (ECF No. 1734).
pending before the Court is Lopez's oral motion made July
18, 2019, at Calendar Call, and joined by Campos and Morales.
The aforementioned defendants request that their respective
ankle GPS monitoring devices be removed for the duration of
Motion to Modify Conditions of Release, (ECF No.
Bail Reform Act guides courts in fashioning acceptable
conditions of pretrial release. See 18 U.S.C. §
3142. Section 3142 requires judicial officers to impose the
least restrictive release conditions that will
"reasonably assure the appearance of the person as
required and the safety of any other person and the
community." 18 U.S.C. § 3142(c)(1)(B); see also
United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.
1991). The factors to be considered in determining whether
there are appropriate conditions of release that further
these aims include: (1) the nature and seriousness of the
offense charged, (2) the weight of the evidence, (3) the
defendant's character, physical and mental condition,
family and community ties, past conduct, history relating to
drugs and alcohol abuse, and criminal history, and (4) the
nature and seriousness of the danger to another person or the
community posed by defendant's release. 18 U.S.C. §
3142(g). Pursuant to Section 3142(c)(3), the Court "may
at any time amend the order to impose additional or different
conditions of release." The party requesting
modification must "establish that new information exists
that was not known to him or her at the time of the initial
detention hearing, and that this new information is material
to his or her release conditions regarding flight or
dangerousness." United States v. Wei SengPhua,
No. 2:14-cr-00249-APG, 2015 WL 127715, at *1 (D. Nev. Jan. 8,
2015); see 18 U.S.C. § 3142(f).
Lopez seeks to modify pretrial release conditions which
currently provide that the defendants "shall avoid all
contact directly or indirectly with co-defendants unless it
is in the presence of counsel." (Am. Order 3:11-13, ECF
No. 1620); (see also Campos PR Bond, ECF No. 262);
(Morales and Garcia Rule 5(c)(3) Documents, ECF No. 453). The
conditions further provide: "The defendant shall avoid
all contact directly or indirectly with the Vagos Motorcycle
Club members, associates, hang arounds, or prospects. The
defendant shall remove himself from any location where any
other co-defendants may be present." (Am. Order
3:14-16); (see also Campos PR Bond, ECF No. 262);
(Morales and Garcia Rule 5(c)(3) Documents at 4, ECF No.
453); (Order, ECF No. 665) (modifying Garcia's
conditions). Lopez requests that the Court modify the
non-association conditions to allow the four defendants to
share a residence in Las Vegas during trial. (Mot. to Modify
1:15-20, ECF No. 1724). Lopez explains that "Mr. Lopez
(and the others) will, of course, be unable to work during
trial. Each is indigent and the cost of finding separate
housing would be a severe financial burden."
(Id. 2:7-11). Lopez further submits that he has been
on pretrial release since August 2018 without incident.
(Id. 1:21-23). Additionally, "Campos, Garcia
and Morales have been on pretrial release without incident
since June of 2017." (Id. 1:22-24).
Response, the Government contends that "Lopez's and
his co-defendants' financial conditions do not support
modifying their release conditions. The no-contact condition
seeks to reduce the risks of collusion and [coercion] between
defendants and potential future criminal activity."
(Resp. 2:10-12, ECF No. 1731).
replies that "the government sidesteps two key
considerations: 1) the men will be spending all day together
in court and in meetings under the JDA agreement outside of
court; and 2) the government's proof of danger proffered
repeatedly at Mr. Lopez's detention hearings does not
exist." (Reply 3:6-13, ECF No. 1734).
review of the relevant filings and the parties'
arguments, the Court GRANTS Lopez's
Motion, (ECF No. 1724). The Court will modify the conditions
that currently do not permit contact with co-defendants
except in the presence of an attorney, and that require a
defendant to remove himself from any location where any other
co-defendants may be present. This modification applies only
to Lopez, Campos, Garcia, and Morales, the four
out-of-custody defendants starting trial on July 29, 2019,
but the modification is limited in a few ways. These four
defendants may communicate only with each other, not the
other co-defendants or any other Vagos Motorcycle Club
member, associate, hang around, or prospect. These four
defendants may communicate with each other only if they are
sharing a common residence during trial as that is the only
reason for the modification. If other living arrangements are
made, this modification will be stayed until and unless the
Pretrial Office can verify the existence of the common
residence and its suitability. The modification is effective
immediately but made only for the duration of trial. As such,
the modification shall expire five (5) days after the end of
Oral Motion to Remove GPS Monitoring Devices
Campos, and Morales request that their respective ankle
monitoring devices be removed for the duration of trial. At
Calendar Call, counsel for Lopez explained he is concerned
that at some point jurors will see Lopez displaying the ankle
monitor or will see Lopez being stopped at the courthouse
entrance due the magnetometer's detection of the ankle
monitor. The Court advised counsel that it would consider
having the ankle monitors removed and placed back on the
defendants every day during trial.
review and consideration, the Court DENIES
Lopez's oral motion. As an initial matter, the ankle
monitors belong to a different district, not the District of
Nevada. Regardless, the deactivation process would apparently
require an hour of deactivating steps for each ankle monitor.
Likewise, reactivation every day after trial would be
similarly burdensome and the defendants could not leave the
courthouse during the day. Monitoring their compliance would
also be difficult and the safety risk cannot be justified
when other options are available. The Court finds this option
to be unreasonably difficult and unnecessary. As such, Lopez,
Campos, and Morales shall continue to wear GPS monitoring
devices in accordance with their conditions of release.
(See Am. Order, ECF No. 1620) (regarding Lopez's
conditions); (Order, ECF No. 605) (regarding Campos's
conditions); (Min. Order, ECF No. 1149) (regarding
Morales's conditions); (Order, ECF No. 1489) (same).
defendants wearing ankle monitors are advised that the
courthouse opens at 7:00 a.m. and they may enter the
courthouse at that time, should they wish to do so. This will
reduce the likelihood that jurors observe the defendants'
ankle monitors when going through the magnetometer at the
courthouse entrance. Trial begins at 8:30 a.m. during the first
week and 9:00 a.m. every week thereafter. Therefore, it is
unlikely that jurors will arrive before 8:00 a.m. on any
given day. Further, for the first day of trial, Monday, July
29, 2019, the Pretrial Services Office will be open at 7:00
a.m. so that the defendants may sit in the office's lobby
if they choose to do so. Additionally, these three defendants
may sit in the courthouse cafe which opens at 7:30 a.m.,
Monday through Friday, wait for Counsel in any of the ...