No. of Recommendations: 5
The Government is no more successful in its efforts to demonstrate through clear and convincing evidence that Abrego is a danger to the community. The evidence that the Government relies on to show this—Abrego’s alleged participation in the human smuggling conspiracy, the protective orders imposed on him by Ms. Vasquez, the witness statements suggesting that Abrego had guns and drugs in his possession while smuggling, and the insinuation that Abrego is a member of MS-13—is a far cry from showing that Abrego is such a danger to others or the community that he cannot be released with conditions.
Nor does the Government’s poor attempts to tie Abrego to MS-13 get it there. Of the three witnesses Agent Joseph testified about that discussed Abrego’s purported affiliation with MS-13, the closest any of them come to stating that Abrego is a member of MS-13 is two witnesses stating he was “familial” with gang members and a third witness stating she “believed” him to be a member. Entirely absent from the record, however, are any indications that such “belief” is rooted in fact or that such “familial” nature came from his actual membership in or support of MS-13 rather than the simple fact that he, like many members of MS-13, is El Salvadorian. For instance, there is no evidence before the Court that Abrego: has markings or tattoos showing gang affiliation; has working relationships with known MS-13 members; ever told any of the witnesses that he is a MS-13 member; or has ever been affiliated with any sort of gang activity.
To the contrary, Agent Joseph presented testimony based on statements from cooperating witnesses that Abrego transported both Barrio 18 and MS-13 members alike, and was cordial with both during those trips. This cuts against the already slim evidence demonstrating Abrego is a member of MS-13. Based on the record before it, for the Court to find that Abrego is member of or in affiliation with MS13, it would have to make so many inferences from the Government’s proffered evidence in its favor that such conclusion would border on fanciful.
…the Government fails to show by a preponderance of the evidence—let alone clear and convincing evidence—that Abrego is such a danger to others or the community that such concerns cannot be mitigated by conditions of release. Given that the Government cannot meet this high bar, this factor weighs against detention.
He concludes:
The Government has failed to show on appeal that this case is one of the “carefully limited exception[s]” where detention pending trial is justified, entitling Abrego to his liberty in the meantime. Accordingly, the Government’s Motion for Revocation of Release Order will be denied. Abrego should be released upon the Magistrate Judge’s issuance of the release order.
One travesty repudiated. Only thousands more remain.
