UNITED STATES v. SIERRA (2025)

DECISION AND ORDER

I. BACKGROUND

Defendant Samuel Sierra, Jr. (hereinafter “Defendant”), along with his co-defendants, stands accused by way of an indictment returned on May 13, 2025, with a narcotics conspiracy involving 400 grams or more of fentanyl, 100 grams or more of fentanyl analogue, 500 grams or more of cocaine, and heroin, in violation of 21 U.S.C. § 846. (Dkt. 1). Defendant was arrested on May 22, 2025, and arraigned that same day before United States Magistrate Judge Mark W. Pedersen (Dkt. 7), to whom this case has been referred pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) (Dkt. 5). The government moved for detention (Dkt. 7), and a detention hearing was held before Judge Pedersen on June 11, 2025 ¹ (Dkt. 41; see Dkt. 43). Judge Pedersen reserved decision and ultimately issued a decision on June 13, 2025, denying the government's motion to detain Defendant and ordering him released subject to certain conditions, including home detention and a $100,000 bond secured by Defendant's real estate holdings. (Dkt. 42). Judge Pedersen temporarily stayed Defendant's release to allow the government to appeal, which the government did on June 16, 2025 (Dkt. 44), at which point the undersigned granted a further stay of Defendant's release (Dkt. 45).

Defendant filed a written response to the government's appeal (Dkt. 50), and an appearance was held before the undersigned on June 30, 2025 (Dkt. 55), and continued on July 2, 2025 (Dkt. 58). At the end of the latter appearance, the Court suggested that the parties could submit further filings on or before July 8, 2025, and both Defendant (Dkt. 59; Dkt. 64) and the government (Dkt. 61; Dkt. 63) have done so.

The Court has carefully reviewed the written submissions and exhibits submitted by the parties (including the transcript of the proceedings before Judge Pedersen). (Dkt. 44; Dkt. 50; Dkt. 59; Dkt. 61; Dkt. 63). The Court has also considered the written communications from Defendant's family in support of his release. (Dkt. 64; Dkt. 65). The Court has also considered the pretrial services report prepared by the United States Probation Office (“USPO”) dated May 27, 2025, recommending release on conditions, and it has reviewed a DVD from the government containing four video files of jail calls from Javier Gonzalez, along with a DEA 6 summarizing the calls. Finally, the Court has considered the Order and Decision of Monroe County Court Judge Caroline E. Morrison dated February 1, 2022, obtained by the USPO and outlining the reasons that Defendant was denied a pistol permit.

After carefully reviewing the record and the factors as set forth at 18 U.S.C. § 3142(g), and considering the arguments of counsel, the Court revokes the release order and orders Defendant detained pending trial, based on its findings that there are no conditions of release that will reasonably assure the safety of any other person and the community.²

II. LEGAL STANDARD

The Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., sets forth the procedures for the release or detention of a person pending trial, sentence, and appeal. The procedures and standards for release or detention of a person pending trial are set forth at 18 U.S.C. § 3142. A defendant awaiting trial must be released unless the release will present a risk of flight or danger, or both, and no set of conditions can reasonably protect against those risks. See United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir. 1986) (explaining that the Bail Reform Act codified “traditional presumption favoring pretrial release for the majority of Federal defendants” (quotation omitted)).

The government bears the burden of proof to establish risk of flight and/or danger, and that no conditions can reasonably protect against those risks. The burden of proof on risk of flight is preponderance of the evidence. United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). On the other hand, the government must demonstrate by clear and convincing evidence that a defendant should not be released due to his risk of danger. United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). Clear and convincing evidence “means something more than ‘preponderance of the evidence,’ and something less than ‘beyond a reasonable doubt.’ ” Id. In other words, the evidence must support a conclusion of danger to the community “with a high degree of certainty.” Id.

Although there is “only a limited group of offenders who should be denied bail pending trial,” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (citations and quotations omitted), when there is “a strong probability that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate,” Chimurenga, 760 F.2d at 403 (quotations omitted). While a prior record of violence or dangerous conduct “eases the government's burden of showing dangerousness, it is not essential. The government's burden is only to prove dangerousness by clear and convincing evidence.” United States v. Rodriguez, 950 F.2d 85, 89 (2d Cir. 1991).

A court is not limited to only considering the charges pending against a defendant when “assessing the degree of danger posed by a defendant's release.” United States v. Bruno, 89 F. Supp. 3d 425, 430 (E.D.N.Y. 2015); see also United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (reversing release and ordering detention while rejecting “requirement that the violent conduct ․ be connected to the activity charged in the indictment”); United States v. Barone, 387 F. App'x 88, 90 (2d Cir. 2010) (affirming detention order based, in part, on a number of past uncharged crimes); United States v. Bellomo, 944 F. Supp. 1160, 1166 (S.D.N.Y. 1996) (“Nor is the dangerousness of a defendant determined solely by looking at the acts charged in the indictment. There is no requirement of a nexus between the charged conduct and the basis of a court's conclusion that a defendant is a serious danger to the community. This Court therefore may look beyond the charged conduct to assess the degree of danger that the defendant poses.” (citations omitted)).

When charged with certain crimes, like the drug offense charged here where the maximum prison sentence is ten years or more, there is a rebuttable presumption pursuant to 18 U.S.C. § 3142(e)(3) that no condition or combination of conditions will reasonably assure the appearance of Defendant and the safety of the community if Defendant is released. See United States v. Contreras, 776 F.2d 51, 54-55 (2d Cir. 1985) (holding that a grand jury indictment establishes probable cause for purposes of the rebuttable presumption under the Bail Reform Act, and when faced with an indictment, the Court need not make an independent finding of probable cause). The presumption shifts to Defendant “a limited burden of production—not a burden of persuasion—to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight.” Mercedes, 254 F.3d at 436. “[A] defendant must introduce some evidence contrary to the presumed fact[s] in order to rebut the presumption.” Rodriguez, 950 F.2d at 88. If a defendant satisfies this burden of production and rebuts the presumption, it does not disappear; rather, the presumption “remains a factor to be considered among those weighed by the district court.” Mercedes, 254 F.3d at 436. Even in a presumption case, at all times the government retains the ultimate burden of persuasion. Id.

The statutory factors that a court must consider in any detention decision are as follows:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ․ or involves ․ a controlled substance, firearm, explosive, or destructive device;

(2) the weight of the evidence against the person;

(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); see also Mercedes, 254 F.3d at 436 (“To determine whether the presumptions of dangerousness and flight are rebutted, the district court considers ․ [the factors set forth at] § 3142(g).”). “A district court has broad discretion to determine how much weight to assign the factors listed in § 3142(g) based on the circumstances of a particular case.” United States v. Zhang, 55 F.4th 141, 144 (2d Cir. 2022). As explained by the Second Circuit in Zhang:

Although § 3142(g) of the Bail Reform Act lists various factors to consider, it says nothing about the relative weight a court should give them when deciding whether to release or detain a defendant. That silence is unsurprising, because the weight given to each factor will inevitably vary from case to case, and might even vary depending on whether the inquiry relates to a defendant's danger or to his risk of flight. What is more, certain factors might interact with one another in a particular case in a way that alters a court's analysis of a defendant's danger to the community or flight risk.

Id. at 149-50 (citation omitted).

In reviewing a detention order of a magistrate judge, a district judge should not simply defer to the judgment of the magistrate judge, but must reach her own independent conclusions. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985). “When making its de novo review, the district court may rely on the record of the proceedings before the magistrate judge and may also accept additional evidence.” United States v. Marra, 165 F. Supp. 2d 478, 481 (W.D.N.Y. 2001). “The rules of evidence do not apply in a detention hearing” and “the government may proceed by proffer.” United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). But “[w]hether presented by proffer or direct evidence, courts retain the responsibility for assessing the accuracy of the Government's proof.” United States v. Enix, 209 F. Supp. 3d 557, 573 (W.D.N.Y. 2016) (quoting United States v. Goba, 240 F. Supp. 2d 242, 247 (W.D.N.Y. 2003)); see also United States v. Martir, 782 F.2d 1141, 1145-46 (2d Cir. 1986) (Court “retains the responsibility for assessing the reliability and accuracy of the government's information, whether presented by proffer or by direct proof.”). That said, “a detention hearing is not to serve as a mini-trial ․ or as a discovery tool for the defendant ․ [and therefore] a government proffer need not always spell out in precise detail how the government will prove its case at trial, nor specify exactly what sources it will use.” Martir, 782 F.2d at 1145.

III. ANALYSIS

As examined below, consideration of three of the § 3142(g) factors supports detention, with the third supporting both detention and release.

A. § 3142(g)(1)—“the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ․ or involves ․ a controlled substance, firearm, explosive, or destructive device”

Consideration of the first § 3142(g) factor weighs strongly in favor of detention. Defendant is accused of participating in a drug conspiracy involving large quantities of lethal narcotics. The government has proffered that Defendant was part of a pipeline of fentanyl transported from the Rochester, New York, area to St. Lawrence County in northern New York, where during “trip after trip” those involved in the conspiracy were “bringing bulk distribution amounts of fentanyl, fentanyl analogue, cocaine and heroin to another county.” (Dkt. 43 at 11). If convicted as charged, Defendant faces a mandatory minimum prison sentence of 10 years and a maximum statutory penalty of life in prison.

The government has represented that on May 22, 2025, the Drug Enforcement Administration (“DEA”) executed 20 search warrants related to this investigation, seizing 2,678 grams of fentanyl—a significant amount of a lethal drug. The government has also represented that it has proof that Defendant was involved in a controlled purchase of nearly 40 grams of fentanyl in or around June 2024, and the drugs were mixed with Xylazine (an animal tranquilizer) which, as documented by the submissions from the government (see Dkt. 44 at 9-13), causes devastating impacts to its consumers (see id. at 44-4 at 2 (“Xylazine causes wounds that erupt with a scaly dead tissue called eschar; untreated, they can lead to amputation. It induces a blackout stupor for hours․”); id. at 5 (“The tranq dope literally eats your flesh․”)).

Upon execution of a search warrant at Defendant's residence after return of the indictment, law enforcement recovered about 38 grams of cocaine, a digital scale with white residue, around $5,000 in cash, a stolen Glock 19 firearm with a large capacity magazine able to hold 30 rounds and loaded with 14 rounds of ammunition,³ two additional magazines loaded with ammunition,⁴ and multiple rounds of other ammunition. The stolen firearm was recovered from a hidden hole in the wall behind the bathroom mirror in the upstairs bathroom at Defendant's residence. If ultimately charged with a violation of 18 U.S.C. § 924(c),⁵ Defendant could face an additional potential penalty of at least five years in prison to be imposed consecutive to any other sentence.

B. § 3142(g)(2)—“the weight of the evidence”

In assessing the weight of the evidence, the Court is not predicting a likelihood of conviction. That is not the Court's role here—Defendant is presumed innocent of the charges and will be afforded the full panoply of Constitutional rights to defend against the charges. But the weight of the evidence is a factor that must be considered under § 3142(g), and the Second Circuit has rejected the concept previously endorsed by district courts (including this one) that the weight of the evidence is the least important factor to be considered under § 3142(g). Zhang, 55 F.4th at 152 n.2.

The weight of the evidence against Defendant is strong. It consists of evidence recovered through execution of search warrants, a controlled purchase involving Defendant, and witness testimony. Thus, consideration of the second § 3142(g) factor weighs in favor of detention.

C. § 3142(g)(3)—“history and characteristics”

Defendant is 37 years old and a lifelong resident of Rochester, New York. He has a good relationship and is in regular contact with his family, who also reside locally. He is in a long-term relationship with the mother of his two minor children (ages 2 and 3), and he also has two children (ages 14 and 17) from a prior relationship. Defendant maintains regular contact with all of his children, who all reside in Rochester. Although Defendant left school around the 8th grade, he obtained his GED on or about May 2, 2017. The letters sent on behalf of Defendant speak to their positive views of his good character. Defendant has no significant medical or mental health concerns. All of this background information about Defendant weighs strongly in favor of release.

But there are other considerations under the third § 3142(g) factor that do not similarly favor release. First, as to Defendant's employment, he reports that he has been self-employed for one year through the ownership of a “vape shop” located inside a “Chester's” at 886 North Clinton in Rochester, New York. Prior to operating this store, Defendant reports owning a sneaker store for about one year, and before that he was employed at a grocery store for about two years. Before all this, he bred and sold dogs for several years. As to Defendant's current employment, the government argues that Defendant was “working as a drug-dealer at a brick-and-mortar location.” (Dkt. 44 at 14). The government contends that Defendant received payments for bulk shipments of fentanyl, heroin, and cocaine while operating the “vape shop” and that he sold other drugs over the counter there. (Id.). The government proffers that the DEA made a controlled purchase of marijuana from Defendant at the shop in or around January 2025 (id.), and when a search warrant was executed at “Chester's” on May 22, 2025, around 448 grams of suspected K2, over 14 kilograms of marijuana, and 1.8 kilograms of THC oil and edibles were recovered from the “vape shop” (Dkt. 61 at 4; Dkt. 61-4). Moreover, despite his somewhat sporadic employment and lack of substantial reported wages, Defendant has significant cash and property assets as reported in the pretrial services report.

Second, Defendant has a criminal history—not all of which was revealed in the pretrial services report. The pretrial services report disclosed Defendant's criminal history from 2009, when he was arrested three times between May 26, 2009, and July 2, 2009—all for drug related offenses (including one felony charge). Defendant was 21 years old at the time and all the charges were resolved through a guilty plea to the misdemeanor crime of criminal possession of a controlled substance in the 7th degree, for which Defendant was sentenced on September 10, 2009, to three years probation. Defendant had no reported issues of compliance with probation, and he was successfully discharged on October 1, 2012. Defendant also has no history of being charged with crimes of violence.

The pretrial services report also disclosed that Defendant's application for a pistol permit was denied, but the reasons for that denial were not disclosed. At the undersigned's request, the USPO investigated the issue further and obtained an Order and Decision dated February 1, 2022, signed by Monroe County Court Judge Caroline E. Morrison, wherein Defendant's application for a pistol permit was denied. Judge Morrison explained that Defendant applied for the permit on or about November 20, 2019. The Monroe County Sheriff's Office issued a Pistol Permit Application Investigation Report on or about July 31, 2020, outlining “many areas of concerns including [Defendant's] (1) failure to disclose two arrests; (2) failure to disclose multiple police encounters; (3) failure to disclose illegal drug use; and (4) failure to disclose termination from employment.” The Order and Decision then explains: “[W]hile the application was pending, applicant was arrested on January 25, 2021, for the class D felony of criminal possession of marihuana in the second degree as well as a traffic misdemeanor and infractions.” After an in-person hearing at which Defendant was permitted “a full and fair opportunity to be heard,” Judge Morrison denied the pistol permit application.

Defendant takes issue with the Court's inquiry about Judge Morrison's Order and Decision, including because it relies in part on a 2021 state court arrest that has been sealed. (Dkt. 59). According to Defendant, “no stigma shall attach” to that sealed criminal record. (Id. at 2 (citing People v. Anonymous, 34 N.Y.3d 631 (2020) (state court could not consider for sentencing purposes erroneously unsealed official records of prior criminal action terminated in defendant's favor under New York Criminal Procedure Law (“CPL”) § 160.50)). But as recognized by the New York Court of Appeals in the case relied on by Defendant, CPL § 160.50(1)(d) contains a list of six precisely drawn statutory exemptions, 34 N.Y. 3d at 638-39, and one of those exemptions is that the records “shall be made available to ․ (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license․”⁶ Thus, Defendant's 2021 marijuana arrest was properly considered as part of his application for a pistol permit and the denial of that permit request is part of the pretrial services report and appropriately considered by this Court. The Court rejects the suggestion, to the extent that Defendant is making it, that it cannot consider Judge Morrison's decision to deny him a pistol permit and the reasons for that decision, when evaluating whether bail should be set here.

A different question is presented, however, as to whether, separate from Judge Morrison's Order and Decision, the Court may consider Defendant's expunged 2021 criminal record in assessing the risks presented by Defendant's release. The government obtained an unsealing order from Monroe County Court on July 3, 2025 (Dkt. 61 at 2), and the underlying records obtained by the government detail that on January 25, 2021, Defendant was arrested in possession of around one pound of marijuana, when the white Range Rover that he was operating was stopped because of a suspended registration (id.). Law enforcement also recovered over $5,400 in U.S. currency, that was positively alerted during a subsequent K-9 examination. (Id.). Neither party has cited any case law specifically addressing whether this type of record expunged under New York law may be considered by a federal court when making a bail determination, and this Court's own research has not led to any case that is expressly on point. Cf. United States v. Barnett, No. 5:03-CR-243(NAM), 2003 WL 22143710, at *11 (N.D.N.Y. Sept. 17, 2003) (juvenile and youthful offender records constitute admissible evidence in federal bail proceedings).

Although the Court recognizes that the conviction has been expunged under New York law, that does not necessarily mean that it is inappropriate to consider the 2021 marijuana arrest and expunged record during a bail hearing in federal court.⁷ Cf. United States v. Matthews, 205 F.3d 544, 548 (2d Cir. 2000) (“[T]he fact that New York courts do not use youthful offender adjudications as predicates for enhanced sentencing ․ does not restrict federal courts from taking them into account when imposing sentences under the Guidelines.”). The Bail Reform Act expressly states that the Court “shall ․ take into account the available information concerning” a defendant's “history and characteristics, including ․ past conduct [and] ․ criminal history․” 18 U.S.C. § 3142(g)(3)(A). In other words, even assuming the expungement renders it no longer within the scope of Defendant's “criminal history,” the activity that led to that arrest and conviction falls within the broader scope of “past conduct.” Nor is the Court convinced that the record—while expunged—falls outside the scope of Defendant's “criminal history.” Under the United States Sentencing Guidelines, sentences of expunged convictions are not counted for criminal history points but they “may be considered under U.S.S.G. § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)).” U.S.S.G. § 4A1.2(j). The Court is hard pressed to believe that an expunged criminal record could be considered as part of a defendant's sentencing, but not as part of a detention determination.

In any event, the Court need not resolve whether it may consider Defendant's 2021 arrest and plea in assessing the risk of his release, because the marijuana arrest in 2021 is not meaningfully different from the conduct before the Court related to the marijuana sales from Defendant's “vape store.” In other words, separate from the 2021 arrest, the record before the Court contains evidence that Defendant has participated in the sale of marijuana and nothing has been offered suggesting that he is licensed by New York State to engage in these sales. Thus, even without consideration of the 2021 expunged record, there is credible evidence that Defendant's drug distribution is not limited to just his criminal record from 2009.

In sum, the Court cannot state that consideration of the third § 3142(g) factor favors release or detention—rather, it presents a mixed picture that cuts both ways. On the one hand, Defendant has strong ties to the area, supportive family, no criminal record involving violent crimes, and his one criminal conviction from 2009 resulted in a probation sentence with no issues. But on the other hand, Defendant's “legitimate” employment seemingly involves the distribution of drugs, and in the investigation related to Defendant's application for a pistol permit many areas of concern were raised, including the failure to disclose his history, and the permit request was ultimately denied.

D. § 3142(g)(4)—“nature and seriousness of the danger to any person or the community that would be posed by the person's release”

Consideration of the final § 3142(g) factor favors detention. The drugs that Defendant is alleged to have conspired to distribute are lethal, and the substance that he allegedly sold through a controlled purchase is extremely harmful. But it is not just the drugs that present the danger. The stolen firearm hidden in a hole in the bathroom at Defendant's residence, loaded with a high-capacity magazine and ammunition, is deeply concerning, particularly when considered in the context of Defendant's denied application for a pistol permit where the investigation revealed that Defendant made misrepresentations when applying for that permit. This leads to the conclusion that setting conditions to protect against the risks posed by Defendant's release, no matter how stringent, would not reasonably protect against those risks.

E. Summary

In sum, based on the totality of the evidence proffered by the government and based on its consideration of all the relevant factors, the Court concludes that Defendant has come forward with some evidence to rebut the presumption for detention, but the government has established by clear and convincing evidence that Defendant's release would present a risk of danger and that no conditions can reasonably protect against that risk. Accordingly, Defendant shall be detained pending the trial of this action, and the order of release is revoked.

CONCLUSION

For the foregoing reasons, the government's appeal of the magistrate judge's release order is granted, and the Court hereby orders pursuant to 18 U.S.C. § 3142(e) that the defendant Samuel Sierra, Jr., be detained pending trial. Defendant shall be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practical, from persons awaiting or serving sentences or being held in custody pending appeal. The Court further orders that Defendant be afforded reasonable opportunity for private consultation with counsel. Finally, the Court directs that, on order of the Court of the United States or on request of an attorney for the government, the person in charge of the corrections facility in which Defendant is confined shall deliver Defendant to a United States Marshal for the purposes of his appearance in connection with any court proceeding.

SO ORDERED.

FOOTNOTES

1.   The detention hearing was delayed because Defendant, who initially was assigned counsel, ultimately elected to retain counsel. (See Dkt. 19; Dkt. 28; Dkt. 31).

2.   The Court is not detaining Defendant based on flight. In other words, while there is a risk that Defendant will not appear as required (based on, among other things, the potential penalties Defendant faces if convicted as charged, his potential resources, and his prior international travel), the undersigned believes that conditions could be set that would reasonably protect against that risk—though they would likely include additional conditions to the ones set by Judge Pedersen.

3.   As the government proffered, a 30-round magazine is illegal in New York.

4.   The government proffered that one of the magazines was designed for 9 mm ammunition and loaded with eight rounds, while the other was designed for .380 caliber ammunition and loaded with six rounds. (See Dkt. 43 at 9).

5.   The Court concludes probable cause would support a § 924(c) charge, based on its secret hidden location, the type of firearm, the drugs and paraphernalia found in Defendant's residence, and the nature of the alleged drug conspiracy.

6.   The Court assumes the sealing of Defendant's 2021 conviction occurred under CPL § 160.50(3)(k)(iii) and (5)(a) (providing for the expungement of certain marijuana related records, including convictions for violating § 221.05 of New York's Penal Law), but that is just an assumption. Other provisions of the CPL also provide for sealing under certain circumstances. See, e.g., CPL § 160.58 (providing for conditional sealing of certain marijuana offenses).

7.   The government represents that Defendant was charged under New York State Penal Law § 221.25 (criminal possession of marijuana in the second degree, a class D felony) and resolved the case by a plea to Penal Law § 221.05 (unlawful possession of marijuana in the second degree, a violation) on April 6, 2021. (Dkt. 61 at 2). But it appears that Penal Law § 221.05 was repealed effective March 31, 2021, so it is unclear how Defendant pleaded guilty to that provision after its repeal.

ELIZABETH A. WOLFORD, Chief Judge