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United States v. Gonzalez-Insua

United States District Court, S.D. Indiana, Indianapolis Division

August 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL GONZALEZ-INSUA Defendants.

          ORDER GRANTING GOVERNMENT'S MOTION FOR RECONSIDERATION OF RELEASE ORDER

          TANYA WALTON PRATT, United States District Court Judge

         This matter is before the Court on the Government's motion for reconsideration of the Magistrate Judge's order permitting pretrial release of Defendant Daniel Gonzalez-Insua (“Gonzalez-Insua”), pursuant to 18 U.S.C. § 3145(a). The undersigned has considered the Magistrate Judge's Order of Release contained in the proceedings held on June 30, 2017, the pretrial services report prepared by the United States Probation Office in the Southern District of Florida, Miami Division, the Government's Motion for Reconsideration of Release Order (Filing No. 735), as well as evidence, exhibits and argument submitted at the August 28, 2017 hearing. The Court finds the Government has met its burden of proof and offered sufficient evidence that Gonzalez-Insua poses a significant flight risk and a continuing risk of economic harm if released. Further, there are no conditions or combination of conditions which would overcome the unacceptable risk that Gonzalez-Insua would flee or pose a danger to the safety of the community. Accordingly, the motion for reconsideration of the release order is GRANTED.

         FINDINGS OF FACT

         On June 24, 2015, eight defendants were charged in a twenty-three count Superseding Indictment alleging multiple violations of possession of goods stolen from interstate shipments, interstate transportation of stolen property, and conspiracy. On May 9, 2017, the grand jury returned a Third Superseding Indictment which added defendant Gonzalez-Insua and others to the indictment. Gonzalez-Insua, is charged with the offenses of (a) interstate transportation of stolen property, in violation of 18 U.S.C. § 2314, (b) possession of goods stolen from interstate commerce, in violation of 18 U.S.C. § 659, and (c) conspiracy to possess goods stolen from interstate commerce, in violation of 18 U.S.C. § 371. On June 27, 2017 Gonzalez-Insua surrendered to the USMS in Miami, Florida, and made an initial appearance on the Second Superseding Indictment in the United States District Court, Southern District of Florida, Miami Division.

         A detention hearing was held before a Magistrate Judge on June 30, 2017. The Magistrate Judge found that Gonzalez-Insua had offered evidence sufficient to rebut the presumption of risk of flight and danger in the community and that the Government had not shown by clear and convincing evidence that there was no combination of conditions that could reasonably assure the safety of others or the community. Gonzalez-Insua was granted pretrial release upon posting a $200, 000.00 personal surety bond, plus $150, 000.00 10% bond and conditions of release which included electronic monitoring. That order was stayed upon motion by the Government to appeal the release order.

         The conspiracy charged in this case involves the theft of multiple cargo shipments from interstate commerce and related criminal activity in Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Ohio, Oklahoma, North Carolina, South Carolina, Tennessee, Virginia and elsewhere between November 2011 and May of 2015. The value of cargo stolen in those thefts is believed to exceed $30 million, not including the value of trucks or trailers stolen contemporaneously with cargo. The FBI's investigation has determined that the modus operandi of the cargo theft group is to follow tractor trailer loads of merchandise leaving known distribution centers throughout the United States and to steal an entire tractor-trailer containing the load from a truck stop or rest stop when the legitimate driver stops to rest or refuel. In each of the cargo thefts, the truck driver is surveilled.

         Gonzalez-Insua was initially identified by two cooperators who participated as conspirators in the charged thefts. Gonzalez-Insua's alleged role in the conspiracy was to conduct surveillance on the truck drivers, once they left their load unattended, so that other conspirators could steal the semi-tractor and load of goods. On January 24, 2013, Gonzalez-Insua and alleged co-conspirators traveled to a Love's Truck Stop in Dandridge, Tennessee where a semi-tractor and trailer hauling Lorillard Cigarettes was stolen. There is video surveillance of Gonzalez-Insua inside the truck stop on the telephone at or near the time of the thefts and in the presence of the truck driver. Further evidence linking Gonzalez-Insua to the conspiracy are cellular phone records which establish phone activity with cooperating coconspirators, at and near the time of the theft. There is similar evidence concerning Gonzalez-Insua being present, conducting surveillance and maintaining cellular phone activity with cooperating co-conspirators regarding a cargo theft of Limited brand merchandise which occurred on March 28, 2013 at a Love's Truck Stop in Jeffersonville, Ohio; a cargo theft of a Pfizer Pharmaceutical load from a Flying J Truck Stop in Wytheville, Virginia on April 24, 2013; a cargo theft of Dell computer equipment at a Pilot Travel Center in VanBuren, Ohio on May 1, 2013; and a cargo theft of Ralph Lauren apparel from a Time Out Travel Center in Newport, Tennessee on July 2, 2013. The alleged overt acts involving Gonzalez-Insua resulted in an aggregate financial loss of at least five million dollars.

         Gonzalez-Insua proffered evidence that he is a native of Cuba and a U.S. permanent resident. He has been a resident of south Florida since 2008. His Cuban passport had expired but he recently renewed that passport. He has not traveled outside of the United States in the past ten years and he is willing to surrender his Cuban passport. Gonzalez-Insua has resided at a rental home in Miami, with his fiancé and minor stepdaughter since November 2016. He is self-employed as a handy man and provides financial support to his children. He has no connections to Indiana. He has family ties (including three children) in Miami and family ties (his mother and two siblings) in Cuba.

         Gonzalez-Insua has a prior criminal history. He was arrested on January 12, 2011 by the Louisville, Kentucky metro police department. On May 1, 2012 he pled guilty to 360 counts of Criminal Possession of Forged Instruments 2nd Degree and False Making of Embossing of Credit Cards, and on May 3, 2012 he was sentenced to five years prison on each count, with five years of conditional discharge on each count. On June 11, 2015 Gonzalez-Insua was discharged from probation by the Jefferson County Probation Department. Throughout the Jefferson County, Kentucky court proceedings, Gonzalez-Insua never failed to appear.

         A violation of Title 18, United States Code, § 659 carries a statutory maximum sentence of 10 years' incarceration. A violation of Title 18, United States Code, § 371 carries a statutory maximum sentence of 5 years' incarceration. The Government moves for pretrial detention because Gonzalez-Insua is charged in the superseding indictment with an offense for which the maximum term of imprisonment is ten years or more; therefore, it is presumed that no condition or combination of conditions will reasonably assure the appearance of the defendant and the safety of the community pursuant to 18 U.S.C. § 3142(e); as well as the risk that defendant would fail to appear at future court hearings, pursuant to 18 U.S.C. § 3142(f)(2)(A). The Government argued that the nature and circumstances of the offense-Insua's participation in multiple thefts of cargo from interstate shipments with an aggregate value of millions of dollars, a criminal history of crimes of dishonesty, the weight of the evidence is clear and convincing, and the defendant's lack of ties to the Southern District of Indiana-demonstrate that Gonzalez-Insua is an unacceptable danger to the community and a risk of flight.

         I. CONCLUSIONS OF LAW

         Detention may be based on a showing of either dangerousness or risk of flight; proof of both is not required. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985). With respect to reasonably assuring the safety of any other person and the community, the Government bears the burden of proving its allegations by clear and convincing evidence. 18 U.S.C. § 3142(f); United States v. Salerno, 481 U.S. 739, 742, 107 S.Ct. 2095, 2099, 95 L.Ed.2d 697 (1987); Portes, 786 F.2d at 764; Orta, 760 F.2d at 891 & n. 18; Leibowitz, 652 F.Supp. at 596; United States v. Knight, 636 F.Supp. 1462, 1465 (S.D. Fla. 1986). Clear and convincing evidence is something more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Addington v. Texas, 441 U.S. 418, 43 1-33, 99 S.Ct. 1804, 1812-13, 60 L.Ed.2d 323 (1979).

         In determining whether there are conditions of release that will reasonably assure a defendant's appearance and the safety of any other person and the community, the Court must take into account the following factors under 18 U.S.C. § 3142(g):

(1) the nature and circumstances of the offense charged, including whether the offense is a ...

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