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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, SX-17-CR-145 Plaintiff, VS. YOUAN RODRIGUEZ, Defendant. MEMORANDUM OPINION THIS MATTER came before the Court on Defendant Youan Rodriguez’s (hereinafter “Rodriguez”) Motion to Reconsider Release Conditions (hereinafter “Motion’) filed on July 5, 2017. On May 24, 2017, the People of the Virgin Islands (hereinafter “People”) orally opposed the Motion. For the following reasons, Rodriguez’s Motion will be granted in part and denied in part. Rodriguez shall be released with conditions. Rodriguez’s request for a bail hearing will be denied as moot. $500,000 bail is not excessive and is sufficient to ensure Rodriguez’s appearance in court. BACKGROUND On or about May 6, 2017, Rodriguez along with four co-defendants, Link Baltimore, Jr., Hubert “Blackness” Lee, Bethzaida Berrios, and Carl Cornelius, were charged with allegedly sexually assaulting and carjacking a female at gun point after striking her vehicle and causing it to stop in the vicinity of Duggan’s Reef in East End. Rodriguez surrendered to the police and was arrested on May 19, 2017. In a twelve (12) count Information, Rodriguez was charged with Rape in the First Degree/Principals, in violation of Title 14 V.LC. §1701(a)(3) & §11(a); False Imprisonment/ Principals, Title 14 V.I.C. §1051(a) & §11(a); Kidnapping For Rape/ Principals, in violation of Title 14 V.LC. §1052(b) & §11(a); Assault in the First Degree/ Principals, in People of the V_I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION violation of Title 14 V.I.C. §295(3) & §11(a); Carrying or Using a Dangerous Weapon During the Commission of a Crime of Violence, in violation of Title 14 V.LC. §2251(a)(2)(B); Unlawful Sexual Contact in the First Degree, in violation of Title 14 V.I.C. §1708(4); Assault in the Third Degree, in violation of Title 14 V.I.C. §297(1&2); Unauthorized Use of a Motor Vehicle/ Principals, in violation of Title 14 V.I.C. §1382 & §11(a). On May 22, 2017, the matter came before the Court for Advise of Rights. The Court stated that the Probable Cause Fact Sheet would remain under seal. The People moved to increase bail. The Court set bail at $500,000 fully secured considering the nature of the charges. The matter was continued to May 24, 2017. At Rodriguez’s request, the May 24, 2017 Bail Hearing was continued without date since Rodriguez’s family was off-island; and the Court could not ascertain whether the family could post money or property. By Order entered May 25, 2017, the Court granted the People’s Motion to maintain its Affidavit in support of Telephonic Search Warrants, Search Warrant, Arrest Warrant, and DNA Search Warrants under Seal. At the June 7, 2017 Arraignment, Rodriguez waived the reading of the Information, pled not guilty and the Court granted Rodriguez’s request for a speedy jury trial. On June 30, 2017, the matter came before the Court for a Status Conference. At the Status Conference, counsel for Rodriguez and the People presented oral arguments on the Motion for Reconsideration of Release Conditions.! Rodriguez waived his appearance at the June 30, 2017 hearing. The Court heard testimony from Rodriguez’s parents—Delores and Virgilio Rodriguez—who volunteered to serve as Rodriguez’s third party custodians. Delores Pauline Rodriguez (hereinafter “Mrs. Rodriguez”) testified that she would be willing to be the third party custodian and that Rodriguez could reside at the family home in 139 R36 Whim, ' Rodriguez also moved for an unsealed copy of the Probable Cause Fact Sheet. People of the VI. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION Frederiksted, St. Croix, (hereinafter “Property”) but she would have to confer with Rodriguez’s father first. Rodriguez’s father, Virgilio Rodriguez Blanco (hereinafter “Mr. Rodriguez”), owned the Property. The Court informed Mrs. Rodriguez that she would have to pay $75 per week for electronic monitoring. Mrs. Rodriguez indicated that she is not employed, but that she would be able to pay the electronic monitoring fee. Ultimately, the Court determined that Mrs. Rodriguez was unsuitable to serve as a third party custodian on her own because she does not own the home where Rodriguez would reside, she is unemployed, and it was unclear how she would be able to pay the weekly $75 fee since she is unemployed. Mr. Rodriguez testified that he owned 139 R36 Whim, Frederiksted, St. Croix, and that he would allow Rodriguez to reside at the Property. According to Mr. Rodriguez, the Property is valued at $80,000 to $90,000, but the Property was on the market.* The Court advised Mr. Rodriguez that while the Property was being used to secure Rodriguez’s release, the Property would have to be taken off the market. Rodriguez moved for his parents to be co-third party custodians and that he be placed on 24 hour house arrest. At the conclusion of the hearing, the Court took the matter under advisement. The questions presented are (1) whether Rodriguez should be granted pre-trial release and (2) whether bail should be reduced. 2 Mr. Rodriguez stated that he owes $3,000 to $4,000 in property taxes. People of the V.I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION STANDARD OF REVIEW? Motion for Release A Motion for Pre-Trial Release is governed by Virgin Islands Rules of Criminal Procedure 46 and 32.1(a)(6).* According to Rule 32.1(a)(6), The court may release or detain the person pending further proceedings. The burden of establishing by clear and convincing evidence that the person will not flee or pose a danger to any other person or to the community rests with the 5 person. Bail Bail is governed by Virgin Islands Rule of Criminal Procedure 5-1.° Rule 5-17 provides for the following forms of bail or release conditions (a) Generally. Subject to any specific statutory provisions, before conviction all persons shall be bailable on conditions approved by the court. (b) Forms of Bail or Release Conditions. Excessive bail shall not be required. Except as otherwise provided by this Rule, there is a presumption in favor of release on nonmonetary conditions for any person who is granted pretrial release. The court shall impose the least restrictive of the following non-exhaustive range of conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, shall impose any combination of the following conditions: 3 On December 1, 2017, the Virgin Islands Rules of Criminal Procedure went into effect and all Superior Court Rules inconsistent with the Virgin Islands Rules of Criminal Procedure were repealed. See generally, In re: Adoption of the V.I. Rules of Crim. P., Prom No. 2017-010. Pursuant to Rule 1(c)(2) , the new rules govern all criminal actions pending on December 1, 2017, unless the Supreme Court declares otherwise or a Superior Court judge “makes an express finding that applying” the new rules “in a particular previously-pending action would be infeasible or would work an injustice.” V.I. R. CRIM. P. 1(c)(2). The Court finds that application of the new rules would not be “infeasible or [] work an injustice.” Jd. 4 See V.1. R. CRIM. P. 5-1. A Motion for Pre-Trial Release is also governed by Section 3 of the Revised Organic Act (hereinafter ROA), the Bail Reform Act (hereinafter BRA), and to the extent not inconsistent with the Virgin Islands Rules of Criminal Procedure, Superior Court Rule 141, Virgin Islands Supreme Court Rule 9, the standards as articulated in Tobal v. People of the Virgin Islands, 51 V.1. 147 (V.I. 2009), Rieara v. People of the Virgin Islands, 57 V.1. 659 (V.I. 2012), People of the V.I. v. Stevens, 2013 V.I. LEXIS 68 (V.1. Super. Ct. Nov. 26, 2013), and to some extent, Williams v. People of the Virgin Islands, 53 V.I. 514 (V.I. 2010), Browne v. People, 50 V.1. 241 (V.I. 2008). 5 See V.I. R. CRIM. P. 32.1(a)(6). 6 Bail is also governed by the standards set forth in Title 5, Section 3816 of the Virgin Islands Code, §3 of the ROA, the BRA codified in 18 U.S.C.S. §§3141-3156, and to the extent not inconsistent with the Virgin Islands Rules of Criminal Procedure, Superior Court Rules 141 and 322.2, Virgin Islands Supreme Court Rule 9, Cantois v. People of the VI, 61 V.I. 257 (2014), and to some extent, Reira, Tobal and Browne. 7 See V.I. R. CRIM. P. Amend. 5-1. People of the V.I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION 1. (1) Personal Recognizance. Pre-trial release based upon the promise that the person will appear for trial or any proceeding in connection therewith as ordered by the court. This type of bail is used in place of a bail bond when the judge is satisfied that the defendant will appear without the need for a surety bond or other form of security. (2) Unsecured Bail Bond. Where the court finds unsecured personal recognizance inadequate, a bail bond in an amount for which the defendant is fully and personally liable upon failure to appear in court when ordered to do so or upon breach of a material condition of release, but which is not secured by any deposit of or lien upon property. (3) Travel and/or Residence Restrictions. Where appropriate, placement of restrictions on the travel, association, or place of abode of the defendant during the period of release; (4) Custody of Designated Person or Organization. Where appropriate, placement of the defendant in the custody of a designated person or organization agreeing to supervise the defendant; (5) Surety Bond. Where personal recognizance, an unsecured bond and other conditions listed in (3) and (4) above are found inadequate, an undertaking by the defendant and sureties, jointly or severally, that the defendant shall appear for trial or any related proceeding as ordered and upon failure to do so defendant and the sureties shall pay the Virgin Islands Government the amount set by the court as bail, or the property used to secure the defendant's release may be forfeited to the extent of the bail. Every surety, except a corporate surety, shall justify by affidavit and shall be required to describe in the affidavit the property by which the surety proposes to be justified and the encumbrances thereon, the number and amount of other recognizances and undertakings for bail entered into by the surety and remaining undischarged, and all of the surety's other liabilities. No recognizance shall be approved unless the surety thereon shall be qualified. (6) Cash Bail Bond. Where none of the foregoing forms of bail is found adequate by the court to assure the presence of the defendant for trial, protect the community from risk of physical harm to persons, or assure the integrity of the judicial process, a sum of money designated in an order fixing bail and posted with the court by a defendant or by another person on defendant's behalf upon condition that such money will be forfeited if the defendant: (1) does not comply with the directions of the court requiring appearance at the criminal trial or related proceedings and (2) does not otherwise render the defendant amenable to the orders and processes of the court. (7) Additional bail. As provided in 5 V.LC. § 3506, when proof is made to the judge that a person previously admitted to bail on a criminal charge is about to abscond, and that bail is insufficient, the judge shall require such person to give better security, or, for default thereof, cause the person to be committed; and an order for the person's arrest may be indorsed on the former commitment, or a bench warrant therefor may be issued, setting forth the cause thereof. The bench warrant shall be issued by the clerk, upon direction of the judge. FINDINGS OF FACTS Rodriguez is a life long resident and has significant roots to St. Croix, U. S. Virgin Islands. People of the V.I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION ah, Rodriguez lived with his parents Delores Pauline Rodriguez and Virgilio Rodriguez Blanco. On May 19, 2017, Rodriguez turned himself in to the Virgin Islands Police Department. Rodriguez was arrested and charged with 12 counts of sexual assault. At the time of his arrest, Rodriguez was left with four months probation in Case No. SX-15-CR-52 where the period of probation was 2 years and 1 month. At the Advice of Rights Hearing, Rodriguez’s bail was set at $500,000.00 fully secured because of the nature of the charges. Rodriguez’s parents volunteered to be third-party custodians. Rodriguez father, the owner of 139 R36 Whim Frederiksted, St. Croix, offered his property valued between $80,000 to $90,000 as collateral for Rodriguez’s release and agree to pay the weekly $75 electronic monitoring fee. Rodriguez works with his father at Pro-Touch Painting, but their work halted because there were no more jobs. DISCUSSION At the June 30, 2017 hearing, the People orally opposed Rodriguez’s Motion stating that he is a flight risk and a danger to the community. The following discourse transpired: THE COURT: I’m trying to figure out what is the basis for him being a flight risk?® PROSECUTOR: Your Honor, the basis of flight risk is based on the period of incarceration that he will be exposed to, Your Honor. That is sufficient for someone not to stick around if he’s facing that length of period of incarceration. And he’s also a danger to the community, Your Honor.? THE COURT: You use all these proverbial words but how is he a danger to the community?!° PROSECUTOR: Your Honor, as I indicated, the defendant was on probation. Before he completed the probation, he got involved in this very serious crime.!! DEFENSE: I guess my concern is that every case that the People bring before the Court is always a serious case. It always carries the threat of a lot of time. It always carries the threat of incarceration.'? The concern that I have is that the charges are not a reason for the court 8 Hr’g on Mot. 3:18-19, June 30, 2017. 9 Hr’g 3:20-25. 10 Hyg 4:1-2. Ml Hyg 4:3-5, 12 Hr'g §:20-23. People of the VI. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION to find that he’s a flight risk. The charges in and of themselves, carry no weight in the determination of release conditions.'? THE COURT: Well, actually, the charges carry a presumption that he may be a flight risk. But that’s about it.!* DEFENSE: I don’t believe that the State has been able—or the People have been able to rebut that particular presumption. Next, the Court inquired if Rodriguez had a third-party custodian. Counsel for Rodriguez Rodriguez!® stated that his parents would be the third-party custodians. Rodriguez’s mother and father both testified that they would be his third-party custodian, and allow Rodriguez to reside with them at 139 R36 Whim, Frederiksted, St. Croix. Rodriguez’s parents both stated that they were willing to pay $75 per week for electronic monitoring. Counsel for Rodriguez suggested that both parents should be co-custodians. Last, Rodriguez argued that “the bail amount of $500,000.00 is clearly excessive.”!’ The People counterargued that the amount of bail was appropriate based on the severity of the charges. L Pre-trial Release Danger to the Community Together, Delores and Virgilio Rodriguez are suitable co-third-party custodians. Rodriguez has lived on St. Croix for his entire life, except for the year that he lived in Boston, Massachusetts to finish his GED. At the time of the May, 2017 alleged incident, Rodriguez violated the conditions of his probation in Case No. SX-15-CR-52. However, there is no indication that before the alleged incident on May, 2017, that Rodriguez had ever violated the conditions of probation. 3 Hr’g 6:7-10. 4 Hr’g 6:11-13. See Browne, 50 V.1. at 249 (“The BRA provides that a rebuttable presumption arises that no conditions will reasonably assure the safety of the community if release is granted for a defendant charged with a crime punishable by life imprisonment or death.””); 18 U.S.C. § 3142(e) and (f)(1)(B). 15 Hy’g 6:17-19. 16 Rodriguez waived his appearance at the June 30, 2017 hearing. 17 Mot. at 1. People of the V.I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION Rodriguez’s mother is not a suitable third-party custodian on her own because she does not own 139 R36 Whim, Frederiksted, St. Croix and the Court struggles to ascertain how Delores Rodriguez would be able to pay $75 per week for electronic monitoring. Virgilio Rodriguez is suitable to be the third-party custodian because he owns 139 R36 Whim, Frederiksted, St. Croix, he will Rodriguez to reside there and he is willing to pay the $75 electronic monitoring fee. The People have not introduced any evidence showing that Virgilio Rodriguez is not a suitable third-party custodian. The Court finds no reason why Delores and Virgilio Rodriguez should not be co-third-party custodians. Mr. Rodriguez testified that someone would be home with Rodriguez 24 hours a day. Hence, the Court finds that Delores and Virgilio Rodriguez are suitable co-third-party custodians.!® Rodriguez’s release will not pose a risk of flight or threat to the community. There is no evidence that Rodriguez’s release will pose a threat to the community and a risk of flight. In fact, two weeks after the incident, Rodriguez surrendered himself to the authorities. It is unclear whether Rodriguez is currently employed at Pro-Touch Painting because in his Motion, he stated that “construction work for the company stopped because there was simply nothing to do.”!® This Court cannot, in good conscience, allow Rodriguez to continue to be employed. To allow for a 6:00 a.m. to 6:00 p.m. curfew, is too great a window for Rodriguez to abscond from the territory. Furthermore, it would be imprudent for the Court to accommodate Rodriguez’s request to be released according to the terms of his probation in SX-15-CR-52.”° The charges against Rodriguez are very serious; and if convicted of rape in the first degree, he will face a 18 V1. R. CRIM. P. 5-1(b)(4) and (4). 19 Mot. at 2. 20 Td. People of the VI. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION maximum prison term of 30 years. Imposing a twenty-four hour house arrest with GPS electronic monitoring significantly reduces the risk of flight.2! The surity is sufficient. “In considering the conditions of release. ..the judicial officer may... conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.” As mentioned before, at the June 30, 2017 hearing, Rodriguez’s father testified that he was willing to post his property at 139 R36 Whim, Frederiksted, St. Croix.” Virgilio Rodriguez testified that the Property was valued between $80,000 to $90,000. The Court finds that the property posted to secure Rodriguez’s pre-trial release is sufficient.”4 Il. Bail $500,000 bail is not excessive. Supreme Court Rule 9 “requires the trial court to set out the reasons and findings it makes when issuing orders deciding bail and other release conditions.””> “If a party is dissatisfied with a bail decision rendered by a magistrate judge, it may be immediately appealed to the assigned judge or the Presiding Judge.”° 21 VJ. R. CRIM. P. 5-1(3). 22 18 U.S.C. §3142(g)(4). 23 For the purpose of justification each of the individual sureties for bail, or an authorized agent of the corporate surety for bail, shall appear before the judge or clerk at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk in his discretion may think proper. The examination shall be reduced to writing and subscribed by the individual surety or the agent for the corporate surety, if required by the plaintiff. See 5 V.LC. § 181. 24 “No recognizance shall be approved unless the surety thereon shall be qualified.” V.I. R. CRIM. P. 5-1(5). 25 Rieara, 57 VI. at 668. 6 V J. Super. Ct. Rule 141(e). See also V.I. Super. Ct. Rule 322.2(b). People of the VI. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION “When the court resolves a motion to modify bail and release conditions, it must make an individualized determination in order to ensure that the bail is not excessive.””’ “A bail order should contain more than just a ‘mere ... recitation of relevant criteria’; it should clearly explain why those triteria support the ultimate bail amount or other release conditions.””° “[T]he BRA provides that a rebuttable presumption arises that no conditions will reasonably assure the safety of the community if release is granted for a defendant charged with a crime punishable by life imprisonment or death.””? However, “[t]he defendant may rebut this presumption by offering proof that conditions exist to reasonably assure the safety of the community and his appearance at trial.’°° These factors include:*! ... the nature and circumstances of the offense charged, the weight of the evidence against the person, and the history and characteristics of the person, such as 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. “<The purpose of bail ... is to assure the defendant's attendance in court, and [it] cannot be a means of punishing the defendant, nor of protecting the public.’”*? “Any bail or conditions of release that are not tailored to achieve the purpose of bail are considered excessive and therefore unconstitutional.” 27 Reira, supra, at 667. V.I. Sup. Ct. R. 9. See also V.I. R. CRIM. P. 5-1 (b). 28 Td (citations omitted). 29 See Browne, 50 V.I. at 249. 18 U.S.C. § 3142(e) and ()(1)(B). Cf People of the V.I. v. Saldana, 2015 V.1. LEXIS 1, *12 (V1. Super. Ct. Jan. 16, 2015) 30 Td. See also VI. R. CRIM. P. 5-1 (b)(1). 31 Saldana, supra. See also V.I. R. CRIM. P. 5-1 (b)(1)-(6). 32 Cantois, 61 V.I. at 260 (citing Tobal, 51 V.I. at 155 n.4 (citation omitted)). 33 Id. at 668 (citing Revised Organic Act of 1954, § 3, 48 U.S.C. § 1561, reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 159-60 (1995) (preceding V.I. Code Ann. tit. 1) (providing that “fa]ll persons shall be bailable by sufficient sureties in the case of criminal offenses, except for first degree murder or any capital offense when the proof is evident or the presumption is great” and also adopting by reference the Eighth Amendment to the U.S. Constitution); Galen v. County of Los Angeles, 477 F.3d 652, 661-62 (9th Cir. 2007) (“The plain meaning of ‘excessive bail’ does not require that it be beyond one's means, only that it be greater than necessary to achieve the purposes for which bail is imposed.”)). See also Williams, 53 V.I. at 522 n.7. V.I. R. CRIM. P. 5-1(b). People of the V_I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION Rodriguez argues that “the bail amount of $500,000.00 is clearly excessive and should be reduced.’ In instant matter, bail was set at $500,000 by the magistrate fully secured because of the nature of the charges. However, this Court must make its own independent determination.*> To ascertain whether bail should be reduced, the Court need not schedule another hearing. The Court finds that there is sufficient information from the June 30, 2017 hearing to make a determination that $500,000 bail is not excessive. As mentioned supra, Rodriguez was charged with Rape in the First Degree/Principals, False Imprisonment/Principals, Kidnapping For Rape/ Principals, Assault in the First Degree/ Principals, Carrying or Using a Dangerous Weapon During the Commission of a Crime of Violence, Unlawful Sexual Contact in the First Degree, Assault in the Third Degree, and Unauthorized Use of a Motor Vehicle/Principals. Considering the seriousness of these charges, Rodriguez could face more than 30 years in prison. Also, at the time of the alleged incident, Rodriguez was on probation in Case No. SX-15-CR-52. The Court is aware that Rodriguez surrendered to the police. However, the fact that Rodriguez’s surrendered does not guarantee that he will appear court. Rodriguez is a life long resident of St. Croix; and he has strong ties to the island. Despite Rodriguez’s prior criminal record, he has no history of violence. It is unclear whether Rodriguez is currently employed. Considering the nature of the charges along with the earlier criminal matter which was pending at the time of the alleged incident, $500,000 bail with 8% surety secured by 34 Mot. at 1. 35 See In re Q.G., 60 V.1. 654, 661 n.8 (2014) (noting that “the decision of a single Superior Court judge ... is not binding precedent on other Superior Court judges”) (collecting cases). People of the V.I. v. Youan Rodriguez SX-17-CR-145 MEMORANDUM OPINION the property located at 139 R36 Whim, Frederiksted, St. Croix is sufficient to ensure Rodriguez’s appearance at trial.>° CONCLUSION Based on the foregoing analysis, the Court will Rodriguez’s Motion will be granted in part and denied in part. Rodriguez offered sufficient proof that conditions exist to reasonably assure the safety of the community and his appearance at trial. Rodriguez will be released from detention pending trial subject to specific conditions. An Order consistent with this Opinion follows. DONE and so ORDERED this /é Tyas of January, 2018. ATTEST: Y, Lae Estrella H. George HAROLD W.L. WILLOCKS Clerk of the Court Administrative Judge of the Superior’ Court By: Qourt Clerk Supervisor 77 Dated: lh Mi 9/9 36 See V.I. Super. Ct. Rule 141 (a) (stating in pertinent part that “any real property utilized by such sureties to secure the defendant's appearance shall have a fair market value which is double the amount of the bail set or reduced by the Court.”’). See also V.I. R. CRIM. P. 5-1 (b)(5).