United States v. Arana

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v.

OMAR ARANA,

Defendant.

Criminal Action No. 23-73-21 (CKK)

MEMORANDUM OPINION

(November 20, 2023)

Defendant Omar Arana is charged by indictment with conspiring to distribute, with others,

thousands of counterfeit pills of fentanyl. On November 16, 2023, Magistrate Judge Maria Audero

of the United States District Court for the Central District of California ordered Defendant to be

released with conditions pending trial. Minutes of Arrest On Out of District Warrant, ECF No. 5,

United States v. Arana, Case No. 23-mj-5938. Magistrate Judge Audero initially stayed the

detention order until 6:00 p.m. PT, November 17, 2023, before extending the stay until 12:00 p.m.

PT, today. Jd.

Before the Court is the Government’s [156] Emergency Motion for De Novo Review of

Magistrate’s Release Order and Request to Stay Defendants’ Release Pending De Novo Review.

The Government requests that the Court vacate the detention order and order Defendant detained

pending trial, or, in the alternative, stay the detention order pending the conclusion of the de novo

review process. The Government moves on an emergency basis on account of the limited stay

issued in this matter. Upon consideration of the pleadings,! the relevant legal authority, and the

pon p 8g gala

! The Court’s consideration has focused on:

e Minutes of Arrest On Out of District Warrant, ECF No. 5, United States v. Arana, Case

No. 23-mj-5938;

e The Government’s Emergency Motion for De Novo Review of Magistrate’s Release Order

and Request to Stay Defendants’ Release Pending De Novo Review, ECF No. 156

record before the Court, the Court shall GRANT the Government’s Motion, VACATE the prior

release order, and order Defendant held without bond pending trial and transported forthwith to

the District of Columbia.

I BACKGROUND

The factual record thus far is underdeveloped. There is no opinion, memorandum, or

statement of reasons attached to the Magistrate Judge’s detention order, and the Court has access

only to an audio recording of Defendant’s detention hearing. There, Magistrate Judge Audero’s

finding appeared to be based on Defendant’s limited criminal history. In an exercise of its

discretion, the Court will rule definitively upon the record presently before it, sparse as it is. See

United States v. Sheffield, 799 F. Supp. 2d 18, 29 (D.D.C. 2011) (BAH) (“The Court is free to use

in its analysis any evidence or reasons relied on by the magistrate judge, but it may also hear

additional evidence and rely on its own reasons.”) (cleaned up). As discussed further below, to

the extent newly-appointed local defense counsel discovers additional evidence or develops further

argument after consultation with his client, the Court welcomes motions for reconsideration, which

the Court would review “as justice requires.” See United States v. Caldwell, Crim. A. No. 21-181

(CKK), 2022 WL 168343, at *5 (D.D.C. Jan. 19, 2022). The Court makes this determination based

on the Government’s exceptionally strong showing here of danger to the community and risk of

flight.

A. Procedural Background

On March 9, 2023, the Government filed an indictment against Defendants Hector David

(“Motion” or “Mot.”) and exhibits therein;

e Defendant Arana’s Opposition to the Government’s Emergency Motion, ECF No. 164

(“Def.’s Opp’n’”); and

e An audio recording of the detention hearing in United States v. Arana, Case No. 23-mj-

5938 (C.D. Cal. Nov. 16, 2023).

Valdez, Craig Eastman, and Charles Jeffrey Taylor. ECF No. 1 at 1. Additional defendants were

indicted on April 26 and May 18, 2023. See ECF No. 25 (first superseding indictment); ECF No. 48

(second superseding indictment). On November 6, 2023, a grand jury returned a third superseding

indictment, adding, among others, Defendant Arana. ECF No. 134 (sealed). Magistrate Judge Robin

M. Meriweather of this jurisdiction then issued an arrest warrant for Defendant, which appears to

have been executed in or around Los Angeles, California on or about November 16, 2023. Affidavit

Re Out-of-District Warrant, ECF No. 1, United States v. Arana, Case No. 23-mj-5938. Counsel

was appointed in that jurisdiction for the purposes of a detention hearing later that day. See Minutes

of Arrest on Out of District Warrant, ECF No. 5, United States vy. Arana, Case No. 23-mj-5938

(“Carlos N Iriarte for Omar Arana, Appointed, present.”). Defendant appeared before Magistrate

Judge Audero the evening of November 16, 2023. It appears from the audio recording of the

detention hearing that Magistrate Judge Audero concluded that Defendant overcome the rebuttable

presumption of detention given his limited criminal history. Magistrate Judge Audero initially

stayed the detention order until 3:00 p.m. PT, November 17, 2023, to afford the Government an

opportunity to appeal to this Court. Magistrate Judge Audero then extended the stay until 12:00 p.m.

PT, today.

The Government filed its emergency Motion the morning of November 17, 2023. ECF

No. 156. The Court then secured local counsel for Defendant in this jurisdiction, and ordered

responsive briefing by 12:00 p.m. ET today, November 20, 2023. Local counsel for Defendant notes

that he has been unable to contact Defendant, and the limited representations contained in

Defendant’s opposifion to the Government’s motion is based on informaifon provided by

Defendant’s family and counsel’s own review of the related documents. Def.’s Opp’n at 1 n. 1.

B. Factual Allegations

Notably, the Government presented few allegations to the Magistrate Judge during

Defendant’s detention hearing. The Government has remedied that here, detailing the allegations

against Defendant, posts and messages from his social media accounts, and large quantities of

drugs seized through searches of Defendant’s residence. Broadly, the Government alleges that

Defendant dealt in vast amounts of counterfeit fentanyl smuggled into the United States, sold those

quantities to distributors, including co-Defendants Valdez and Nava, who later sold them to street-

level dealers throughout the United States, including various co-defendants. See Mot. at 4-11. A

search of Defendant’s residence in California uncovered a duffle bag “containing several hundred

suspected fentanyl pills.” Jd. at 21. According to the Drug Enforcement Agency, approximately

two milligrams of fentanyl can constitute a lethal dose. DEA, Facts About Fentanyl, available at

Government alleges that the search uncovered “tens of thousands, if not more, of lethal fentanyl

pills.” Jd. at 26.

The Government alleges that a search of Defendant’s social media account “illustrates his

redistribution of fentanyl pills by the thousands.” Jd. at 13. According to the Government, the

below images were found “in the returns of [Defendant’s] account,” corroborating Defendant’s

illicit dealing in vast quantities of lethal drugs. Jd. The picture on the left depicts hundreds (if not

thousands) of blue pills marked with the letter “M” on one side and the number “30” on the other

side, which, the Government proffers, is consistent with “counterfeit oxycodone pills containing

fentanyl.” Jd. The picture in the middle depicts a close-up of these pills. Finally, the picture on

the right shows sufi pills in prescription bottles with the phrase “#NOTFORSELL,” which the

Government states is commonly used by drug traffickers in an attempt to “disclaim their obvious

intent to distribute drugs pictured on their social media accounts.” Jd.

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See generally id. The Government further recounts numerous purported social media messages

between Defendant and co-Defendant Nava, appending images from a social media account that

corroborates its claim that Defendant, among others, dealt in vast quantities in illicit drugs. See

id. at 14-19. For instance, on September 3, 2022, Defendant wrote to Nava, “just shoot the boat

back.” Jd. at 14. A “boat” is a street term for 1,000 pills. Jd. Following a series of missed calls,

Defendant then writes to Nava, “U not trying to answer my call and communicate just it [...] back

and we gucci [i.e., we’re OK].” Jd. Days later, Defendant again writes to Nava, stating, “Wasup

with my bread [i.e., money] my n****,” “Shopy me .50 cents, ” “And we good already.” Jd. The

Government claims that this conversation demonstrates that Nava owed Defendant money, and

Defendant suggested either getting back the pills or getting the money he owed. Jd.

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Sent 2022-09-06 05:10:36 VIC

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Sent 2022-09-06 05:11:23 UTC

Body Simple as that

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Sent 2022-09-06 05:12:47 UFC

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and we gucci

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Sent 2022-09-10 00:59:21 UTC

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Author __ frogz {instagram; 45425700909}

Sent 2022-09-10 00:59:36 UTC

Body Shoot me 50 cents

Author __ frogz {instagram: 45425700909)

Sent 2622-09-20 00:59:47 UTC

Body And we good already

See id. Similarly, on November 10, 2022, Nava asked Defendant for “30 boats”—.e., 30,000

counterfeit pills. Jd. at 15. Defendant stated that he could obtain the pills, but needed time. Jd.

Nava responded, stating that he needed the pills immediately because he had a customer who was

ready to pay in cash. Jd. Defendant said the customer would have to wait. Jd.

Author _gity_bxy_ (Instagram: 241344701)

Sent 2022-10-10 20.03:41 UTC

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Sent 2022-10-10 20:04:21 UTC

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See id, at 16. The next day, on November 11, 2022, Defendant asked Nava if he could pay

Defendant $0.60 per pill for 30,000 pills. Jd. at 17. Nava stated that his customers want $20,000

at $0.55 per pill. Jd. Defendant said he would see if he could get the pills for $.50 per pill so that

Nava’s buyers could pay $0.55 per pill and Defendant could keep a profit of $0.05 per pill (for a

total of $1,000). Id. Nava stated that his buyer(s) has cash and is ready to purchase, and Defendant

ultimately obtains the pills.

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Sent 2022-10-21 47:59:25 UTC

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Body Can u do .60 for tha 30 pri?

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Sent 2022-10-21 28:18:05 UTC

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Id. Moreover, the Government alleges, and appends additional images to corroborate its claim,

that Defendant knew he was trafficking in fentanyl. On November 4, 2022, Nava orchestrated a

sale in which Defendant sold fentanyl to co-Defendant Valdez. See id. at 18. Nava wants the pills

from Defendant at $0.50 per pill so that Valdez can pay $0.55 per pill. Nava also inquires if

Defendant “break[s] down the fetty,” i.e., whether Defendant cuts the fentanyl with cutting agents.

Id. Defendant responded, stating he will complete the sale with his supplier. Jd.

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wants then at SS

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Sent 2022-21-04 19:38:36 UTC

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See id. And, on October 26, 2022, Nava tells Defendant he wants fentanyl (“fetty”), and Defendant

responds, “Oh fettys yeah.” Jd. at 19.

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Author giry_bxy_ (Instagram: 241344701)

Sent 2022-10-26 00:17:28 UTC

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Author __ frogz (Instagram: 45425700909)

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See id.

Il. LEGAL STANDARD

The Government may file “a motion for revocation of the order” with “the court having

original jurisdiction over the offense.” 18 U.S.C. § 3145(a). The Court applies de novo review to

the question and is “free to use in its analysis any evidence or reasons relied on by the magistrate

judge, but it may also hear additional evidence and rely on its own reasons.” Sheffield, 799 F.

Supp. 2d at 20 (quoting United States v. Hanson, 613 F. Supp. 2d 85, 88 (D.D.C. 2009)). “The

motion shall be determined promptly.” 18 U.S.C. § 3145(a).

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). The Bail Reform

Act permits pretrial detention in only “carefully defined circumstances.” United States v.

Simpkins, 826 F.2d 94, 95-96 (D.C. Cir. 1987). A detention hearing must be held only if a case

involves any of an enumerated set of offenses, including an offense “for which a maximum term

of imprisonment of ten years or more is prescribed in|, inter alia,] the Controlled Substances Act,”

18 U.S.C. § 3142(f)(1)(C), or if the defendant poses a serious risk of flight or of trying to obstruct

justice or threaten, injure, or intimidate a witness or juror, id. § 3142(f)(2)(A)B).

The question for the Court is whether any “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.” Jd. § 3142(e)(1). “In common parlance, the relevant inquiry is whether the

defendant is a ‘flight risk’ or a ‘danger to the community.’” United States v. Vasquez-Benitez,

919 F.3d 546, 550 (D.C. Cir. 2019). In determining whether a defendant should be detained

pending trial, the Eourt must consider “the available information” Goncemine four enumerated

factors: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence

against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and

10

seriousness of the danger to any person or the community that would be posed by the defendant’s

release. 18 U.S.C. § 3142(g).

“To justify detention on the basis of dangerousness, the government must prove by ‘clear

and convincing evidence’ that ‘no condition or combination of conditions will reasonably assure

the safety of any other person and the community.’” United States v. Munchel, 991 F.3d 1273,

1279-80 (D.C. Cir. 2021) (quoting 18 U.S.C. § 3142(f)). That standard requires the Government

to establish that the defendant “poses a concrete, prospective threat to public safety” that cannot

be sufficiently mitigated by release conditions. Jd. at 1280; see also Salerno, 481 U.S. at 751

(requiring the Government to “prove[ ] by clear and convincing evidence that an arrestee presents

an identified and articulable threat to an individual or the community”). “Detention cannot be

based on a finding that defendant is unlikely to comply with conditions of release absent the

requisite finding of dangerousness or risk of flight; otherwise[,] the scope of detention would

extend beyond the limits set by Congress.” Munchel, 991 F.3d at 1283.

I. DISCUSSION

Despite the rather underdeveloped record, the Court concludes that the evidence presented

by the Government in its briefing clearly requires Defendant’s detention pending trial. That said,

the Court acknowledges that counsel for Defendant has had little opportunity to develop the factual

record on behalf of his client given his recent appointment and the expedited briefing schedule. If

counsel discovers evidence or develops legal arguments that he was not able to present in the

instant briefing, the Court encourages defense counsel to move for reconsideration.

A. Legal Principles

11

As a threshold matter, the Court must address the proper standard to apply at this stage of

proceedings.” As explained above, the Government has appealed a detention order pursuant to

18 U.S.C. § 3145. Such an appeal is subject to de novo review, in which the Court must engage

in a searching, “factbound inquiry” to determine danger to the community and/or risk of flight.

United States v. Sabol, 534 F. Supp. 3d 58, 69 (D.D.C. 2021) (EGS) (citing Munchel, 991 F.3d at

1283) (cleaned up).

In determining whether Defendant is a danger to the community or a flight risk, the Court

considers the Section 3142(g) factors including: (1) “the nature and circumstances of the offense

charged”; (2) “the weight of the evidence”; (3) “the history and characteristics” of the defendant;

and (4) “the nature and seriousness of the danger to any person or the community that would be

posed by the [defendant’s] release.” 18 U.S.C. § 3142(g).

The Court shall consider these factors based upon the present record without holding an

additional hearing. See Sheffield, 799 F. Supp. 2d at 20 (permitting district court to use in its

analysis the evidence relied on by the magistrate judge); see also United States v. Anderson, 384 F.

Supp. 2d 32, 33-34 (D.D.C. 2005) (PLF) (taking into consideration the indictment, “the briefs and

other papers submitted by the parties, the proceedings before [the magistrate judge], the

[magistrate’s] findings of fact and conclusions of law, and the evidence and proffers before [the

court]”). Based on the current record, the Court concludes that clear and convincing evidence

supports a finding that no condition or combination of conditions will “reasonably assure” the

? The Court notes that this is not the first time the Government sought relief from a magistrate judge’s detention orders

in this case. See United States v. Nava, 2023 WL 3158987 (D.D.C. Apr. 28, 2023) (CKK) (vacating detention orders

as to Defendants Nava and Torres).

12

“safety of any other person and the community” or flight in advance of trial. Accordingly, the

Court orders that Defendant remains detained pending trial. See 18 U.S.C. § 3142(e)(1).

B. Nature and Circumstances of the Offense Charged

Turing to the Section 3142(g) factors, the Court first considers the “nature and

circumstances of the offense charged” including whether the offense involves “a controlled

substance.” 18 U.S.C. § 3142(g)(1). In this case, a rebuttable presumption of detention applies

because Defendant has been charged by indictment with serious violations of the Controlled

Substances Act. See id. § 3142(e)(3)(A); United States v. Brown, 538 F. Supp. 3d 154, 165

(D.D.C. 2021) (RCL). Even the possession with intent to distribute “9.11 grams of fentanyl and

.89 grams of powdered cocaine” triggers such a presumption. Brown, 538 F. Supp. 3d at 165-66.

Here, the Government has presented convincing evidence that Defendant conspired to traffic, and

did in fact traffic, in tens of thousands of grams of fentanyl. Mot. at 13-22. The Court must

therefore presume that no condition or combination of conditions will reasonably assure

Defendant’s appearance as required or the safety of the community. To rebut this presumption,

Defendant must “offer some credible evidence” that he will not endanger the community or flee if

released. United States v. Cherry, 221 F. Supp. 3d 26, 32 (D.D.C. 2016) (GMH).

The nature and circumstances of the offense here definitively weigh in favor of detention.

Defendant is charged with conspiring to distribute and possess with intent to distribute 400 grams

or more of a substance containing fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), 846. This

charge carries a ten-year mandatory minimum sentence, with a maximum of life. Jd.

§ 841 (b)(1)(A)(vi). “Moreover, this is not the case of an imdigicaal seller working alone.” Brown,

538 F. Supp. 3d at 167. The Government alleges not just a conspiracy among the Defendants in

this action, but vast distribution across the United States. Therefore, Defendant’s “alleged

13

participation in the conspiracy charged thus strongly suggests that, if released, he would have the

means to purchase and distribute narcotics and thereby endanger [not just] the D.C. community,”

but also communities throughout the United States. See id.

Moreover, each of the twelve previously apprehended defendants who had been indicted

in the second superseding indictment have been ordered detained pending trial, including each of

Defendant’s California-based co-conspirators. See United States v. Nava, 2023 WL 3158987

(D.D.C. Apr. 28, 2023) (CKK) (ordering Defendants Nava and Torres detained pending trial). As

for the third superseding indictment, the Government proffers that Defendant and others were

arrested this month, four of whom have been ordered detained while the detention of the remaining

defendants is currently pending. Mot. at 26-27. Releasing this particular defendant, who is a

large-scale supplier of fentanyl in California, would be contrary to the other detention orders in

effect. Therefore, the first factor weighs in favor of detention.

C. Weight of the Evidence

The weight of the evidence against Defendant also favors continued pretrial detention.

Law enforcement recovered a legion of messages and images from Defendant’s social media

account, reflecting that Defendant possessed and sold large quantities of counterfeit drugs (by the

tens of thousands). See id. at 13-22. And, from a search of Defendant’s residence, the Government

recovered “[h]undreds of pills” in a duffle bag, with documents in Defendant’s name found in the

same location (the garage). Jd. at 27. The weight of this evidence is strong. See Brown, 538 F.

Supp. 3d at 168-69. Given the evidence to date, this factor weighs in favor of detention. See

United States v. Brockhoff, 590 FE Supp. 3d 295, 304 (DDC. 2022) (CKK).

D. History and Characteristics of the Defendant

14

Under the third Section 3142(g) factor, the Court must consider a defendant’s “history and

characteristics,” including his “character, physical and mental condition, family ties, employment,

financial resources, length of residence in the community, community ties, past conduct, history

related to drug or alcohol abuse, criminal history, and record concerning appearance at court

proceedings.” 18 U.S.C. § 3142(g)(3). Admittedly, Defendant’s lack of a serious criminal record

weighs against pretrial detention. See Brockhoff, 590 F. Supp. 3d at 305; see also Def.’s Opp’n at

7 (noting Defendant “has no prior juvenile or adult felony convictions”). Nevertheless, the

Government proffers that an arrest was issued in June 2023 for Defendant for a domestic-violence

offense, which was dismissed due to the victim’s decision not to testify. Mot. at 28.

Defendant also appears to have family and community ties in California. See Def.’s Opp’n

at 7 (stating Defendant is a “lifelong resident” in California and maintains strong family relations

there). However, the Government proffers that Defendant also has family in Mexico according to

the pretrial services report.? Mot. at 28. Therefore, the Government alleges that, given

Defendant’s “criminal exposure” and his “ties to individuals in a foreign country,” Defendant has

a “serious risk of flight and non-compliance.” Jd. Counsel for Defendant refutes the Government’s

allegations, stating that, based on the information available to counsel, Defendant does not have

family in Mexico. Def.’s Opp’n at 8. And, to the extent there is a concern about the risk of flight,

counsel Defendant is willing to surrender his passport to pretrial services prior to his release. Id.

at 9. However, even counsel for Defendant notes that the pretrial report indicates that Defendant

3 The Court understands that the pretrial report indicates some connection to Mexico. Although this document is

supposedly unsealed, the Court has not been able to access it at this time.

15

“visit[s] Mexico every three years.” Def.’s Opp’n at 8. Accordingly, based on the representations

of the parties, Defendant must have some connections to Mexico, whether familial or not.

In all, this factor weighs in favor of detention. Defendant does not provide “credible

evidence” sufficient to rebut the presumption, but rather a lack of available information. See id.

at 8-9.

E. The Nature and Seriousness of the Danger Posed by Defendant’s Release

The final factor that the Court must consider is “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)(4). Conspiring to distribute fentanyl presumptively renders a defendant a serious danger

to the community. See Brown, 538 F. Supp. 3d at 170; cf also United States v. Bethea, 763 F.

Supp. 2d 50, 54 (D.D.C. 2011) (RCL) (narcotics trafficking generally). Particularly so here given

the vast amount of drugs at issue. Defendant appears to have ties to Mexico, and the statutory

penalties Defendant faces provide him with a strong incentive to flee. More generally, “the

lethality of fentanyl and scourge of . . . opioids on this community [and communities around the

country] further demonstrate the serious danger Defendant’s release could pose.” United States v.

Bolivar, 455 F. Supp. 3d 1165, 1171 (D.N.M. 2020).

Defendant argues that a suitable third-party custodian (such as Defendant’s mother or

girlfriend) can mitigate the Court’s concern for the safety of the community. See Def.’s Opp’n at

8. However, the Court’s concern regarding the safety of the community is not alleviated, as

16

Defendant also requests to continue to work as a commercial truck driver, thereby giving him the

means to flee. Therefore, this factor also weighs in favor of detention.

* * *

All in ali, even if Defendant could rebut the presumption of detention, the Court finds that

no set of conditions can assure his presence at trial or address the threat of danger he poses to

communities in the District of Columbia or Los Angeles. The Government has shown that

Defendant has a strong incentive to flee given the seriousness of the charges, the apparent weight

of the evidence, and Defendant’s ties to Mexico. Therefore, the Court concludes that the Section

3142 factors require pretrial detention.

IV. CONCLUSION

The record as a whole establishes, by clear and convincing evidence, that no condition or

combination of conditions can be imposed that would reasonably assure the safety of the

community if Defendant was released pending trial. 18 U.S.C. § 3142(e)(1). As such, the Court

GRANTS the Government’s [156] Emergency Motion for De Novo Review of Magistrate’s

Release Order and Request to Stay Defendants’ Release Pending De Novo Review, VACATES

the prior release order, and orders Defendant held without bond pending trial and transported to

the District of Columbia. An appropriate order accompanies this memorandum opinion.

(i ( be) K We (S/

COLLEEN KOLLAR-KOTELLY

United States District Judge

Dated: November 20, 2023

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