
USCA1 Opinion

	




          August 15, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1535                                                UNITED STATES,                                      Appellee,                                          v.                              JUAN CARLOS ARROYO-REYES,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Luis F. Abreu Elias on brief for appellant.               ___________________               Guillermo  Gil,  United  States   Attorney,  and  Miguel  A.               ______________                                    __________          Pereira, Assistant U.S. Attorney, on brief for appellee.          _______                                  __________________                                  __________________                 Per Curiam.  Defendant Juan  Carlos Arroyo-Reyes appeals                 __________            from  a district  court  order denying  him  bail.   For  the            following reasons, we affirm.                                          I.                 On March 9, 1994,  a federal grand jury returned  a five            count  indictment  charging   defendant  with  conspiracy  to            distribute  at  least  fifty  grams  of  cocaine  base,  five            kilograms of  cocaine,  and one  kilogram of  heroin, see  21                                                                  ___            U.S.C.    841(a)(1), 846; continuing criminal enterprise, see                                                                      ___            21 U.S.C.    848(a)-(b); and using  and carrying firearms  in            relation to  a  drug trafficking  offense,  see 18  U.S.C.                                                           ___            924(c)(1).   The indictment  further charged, as  overt acts,            that defendant supervised sales of controlled substances; and            that he and his co-conspirators  used weapons to protect drug            operations,  to  carry  out  carjackings, and  to  intimidate            honest  citizens who might report  on their activities to law            enforcement officials.  Following defendant's arrest on these            charges,  a detention  hearing was  held before  a magistrate            judge.   The magistrate  decided to detain  defendant without            bail pending trial on  grounds of risk-of-flight.  A  de novo            hearing was  subsequently held  before the district  judge on            April 22, 1994.                    At the  detention  hearings, F.B.I.  Special Agent  Todd            Polley testified  for the government.   Polley testified that            based on information provided him by confidential sources and                                         -2-            the  local police precinct, the defendant is the leader of an            approximately  twenty-six member gang  which operates  a drug            point in Toa  Baja, Puerto  Rico, and which  uses weapons  to            protect  its  members and  its  stashes of  money  from rival            gangs.  Polley and other FBI agents conducted surveillance of            the  alleged drug  point  and  observed individuals  carrying            weapons,  communicating  by radio  equipment,  and conducting            what appeared  to  be drug  transactions.   On one  occasion,            agents observed  over  one hundred  transactions  take  place            within  a three hour period.  A controlled buy confirmed that            drugs were being  sold.   Agent Polley saw  defendant at  the            drug point on  a number  of occasions, and  observed that  he            appeared to be followed by body guards.                 Polley further  testified that  a search  of defendant's            home  revealed over  $14,000 cash,  a money  counter, ziplock            bags similar  to  those  used to  package  drugs,  and  radio            transmission  equipment  similar to  that  used  by the  gang            members to communicate with  each other.  Tape recordings  of            overheard  radio  communications,  played  at  the  hearings,            included  references by  gang members  to weapons,  drugs and            carjackings.  On  one of these tapes,  gang members discussed            freshly   spray-painted   threats   designed  to   intimidate            community  members  perceived  to  be  "snitches"  or  "stool            pigeons."    Other  evidence  included  a  photograph   which            depicted defendant,  roughly fifteen feet away  from the drug                                         -3-            point,  wearing  a  cellular  phone  on his  hip  pocket  and            accompanied  by two individuals,  one of whom  was carrying a            pistol.  Another photograph depicted defendant transferring a            packet from the  drug point  to a motor  vehicle.1   Finally,            the government proffered testimony that on September 6, 1993,            defendant and  another individual  were arrested  in Bayamon,            Puerto Rico with  $30,598 cash, two kilograms of cocaine, and            two loaded weapons.2   As a result of this  arrest, defendant            faces charges in the Superior Court of Puerto Rico.                 The  defendant  is  twenty  years old  and  a  life-long            resident of Puerto Rico.   At the time of his arrest,  he was            living with his grandfather.   Defendant proffered  witnesses            who would  testify, among other things, to  his strong family            and   community  ties;   his  positive   employment  history,            including  work as an electronic technician  and a laborer in            the construction industry; his religious upbringing;  and his            good reputation  in  the community.   One  witness, a  former            employer, would have testified  that defendant was a "trusted            employee," and that he was willing  to employ defendant again            and  to provide  employment records  to  the court.   Another            witness  would  have  testified that  defendant  had  studied            electronics  and had  a  part-time  job  in his  home  fixing                                            ____________________            1.  The contents of the packet is unknown.              2.  Defense  counsel  contested  this   proffered  testimony,            stating  that defendant  was merely  a  passenger in  a motor            vehicle in which drugs and weapons were found.                                         -4-            electronic  equipment.   Defendant's  grandfather  offered to            post his home (worth $44,000) as bond, as well as to serve as            a third-party custodian if defendant were released.3                  The  district  court  affirmed  the  magistrate  judge's            detention  order on the grounds that defendant is both a risk            of flight and  a danger to  the community.   The court  first            observed  that where, as here,  a defendant has been indicted            for  a drug offense punishable by ten  or more years under 21            U.S.C.   801  et seq., as well as a  firearm offense under 18            U.S.C.   924(c)(1), a "rebuttable presumption" arises that no            condition or combination of conditions will reasonably assure            his appearance as  required and the safety  of the community.            See  18 U.S.C.   3142(e);  United States v.  Vargas, 804 F.2d            ___                        _____________     ______            157,  163  (1st  Cir.   1986)  (per  curiam)  (indictment  is            sufficient  to  establish  probable  cause  for  purposes  of            triggering  the rebuttable  presumption in    3142(e)).   The            court then stated:                 Mindful of the fact  that the presumption shifts to                 the  defendant  the burden  of production,  not the                 burden  of persuasion,  the defendant's  proffer of                 evidence is  not enough to  grant him  bail.   This                 record  contains  strong  indicia   of  defendant's                 involvement in a drugs and firearms conspiracy  and                 criminal  enterprise.    The  testimony  of  F.B.I.                 Special  Agent Todd  Polley, as  well as  the taped                 recordings  and  photo evidence,  so confirm.   The                 defendant operated what appears  to be a large drug                                            ____________________            3.  The transcript of the de novo bail hearing also indicates            that  defendant submitted  to  the court  a letter  signed by            seventy-seven  community  members.    This  letter  was   not            presented to us on appeal.                                         -5-                 point   backed   up   by   a   twenty-plus   member                 organization under his direction.  Large amounts of                 cash were  seized.   The presence of  cash suggests                 that  fleeing is  easier  to achieve.   Money  buys                 access  to   boats  and  private   airplanes  to  a                 multitude  of  neighboring   islands,  from   where                 further escape  is quite  easy.   Furthermore,  the                 obvious   violent   nature   of  the   drug-related                 activities  and  the  use  of  firearms  and  armed                 carjacking  demonstrate  that  the  safety  of  the                 community is compromised.   The presumption remains                 that no condition or combination of conditions will                 reasonably assure appearance and  the safety of the                                              ___                 community.                                         II.                 In  pretrial  detention  cases,  we  employ "independent            review,   tempered  by   a   degree  of   deference  to   the            determinations made  below."   United States v.  Tortora, 922                                           _____________     _______            F.2d  880, 882 (1st  Cir. 1990).   As a practical  matter, we            defer greatly  to the district court's factual findings.  Id.                                                                      ___            at 882-83.  We also carefully scrutinize the district court's            reasons, considering whether "due  attention was given to all            the statutory factors."   United States v.  O'Brien, 895 F.2d                                      _____________     _______            810, 816 (1st Cir. 1990).  These factors are:  (1) the nature            and circumstances of  the offense charged; (2)  the weight of            the  evidence; (3)  the  history and  characteristics of  the            accused,  including  past conduct;  and  (4)  the nature  and            seriousness  of the  danger posed  by the  accused's release.            See 18  U.S.C.    3142(g).    We give  such deference  to the            ___            court's conclusions  "as we think the  care and consideration            manifested  by the . .  . district court  warrant."  O'Brien,                                                                 _______            895 F.2d at 816.                                         -6-                 Defendant attacks the  reasoning of the district  court.            First, he  contends  that the  district  court  impermissibly            placed  the burden on him to prove that pre-trial release was            warranted.  Second, defendant  argues that the district court            ignored some of the statutory factors relevant to release and            improperly  weighed  those  factors  it  did  consider.    In            particular, defendant contends that the district court relied            almost solely on the first factor, the nature of the offense,            and  failed to assess the  weight of the  evidence (which, he            suggests,  is  weak),  attached  too  little  weight  to  his            proffered   evidence  regarding  the   history  and  personal            characteristics of  the defendant,  and failed to  articulate            any danger that defendant poses to the community.                 The government unquestionably bears  the burden of proof            at  a pretrial detention hearing.4   Here, the government was            aided by the presumption,  set forth in 18 U.S.C.    3142(e),            that  no  conditions  would  reasonably   assure  defendant's            appearance  and the  safety of  the community.   The district            court's order makes it plain that it was fully cognizant that            this presumption merely shifts to the defendant the burden of            production, not the burden of  persuasion.  See United States                                                        ___ _____________            v. Jessup,  757 F.2d 378, 381  (1st Cir. 1985).   Contrary to               ______                                            ____________________            4.  The government  must demonstrate, by clear and convincing            evidence, that the defendant's release poses a risk of danger            to the  community; or, by  a preponderance  of the  evidence,            that there  is  a  risk of  flight.   See  United  States  v.                                                  ___  ______________            Patriarca, 948 F.2d 789, 792-93 (1st Cir. 1991).              _________                                         -7-            the defendant's  suggestion, we do not  interpret the court's            statement  that his  "proffer of  evidence  is not  enough to            grant him bail" to mean that the district court lost sight of            who had  the burden of proof.   Rather, read in context, this            remark  merely  indicates  that  the  court  duly  considered            defendant's proffer  but ultimately  concluded that,  even in            light of it, there was sufficient evidence to detain him.                 We add that the presumption reflects Congress's findings            that drug  traffickers often  have the resources  and foreign            contacts to escape to other countries,  and that they present            a special risk of pre-trial recidivism.  See United States v.                                                     ___ _____________            Palmer-Contreras,  835  F.2d  15,  17 (1st  Cir.  1987)  (per            ________________            curiam);  United States  v. Williams, 753 F.2d 329,  335 (4th                      _____________     ________            Cir. 1985).  Even  when, as here, a defendant  has introduced            "some evidence" to rebut the presumption, the facts that gave            rise  to the presumption  retain evidentiary weight depending            upon  how  closely  defendant's  case  resembles  the  highly            lucrative  drug  operations at  the  center of  congressional            concern.   See Palmer-Contreras, 835  F.2d at 18.   Given the                       ___ ________________            size of the  organization here, its apparent heavy  volume of            business, and  the evidence  of cash resources,  the district            court   appropriately   gave   continuing   weight   to   the            presumption.5                                            ____________________            5.  Contrary to  defendant's suggestion,  we do  not construe            the district court's statement that the presumption "remains"            to mean that it gave conclusive weight to it.                                         -8-                 We also reject  defendant's argument  that the  district            court did not properly consider all of the relevant statutory            factors.   First, we note that defendant errs in stating that            the  district  court  failed  to  assess  the  weight  of the            evidence against  him.  To  the contrary, the  district court            found  that  the  record  contains "strong  indicia"  of  his            involvement "in  a drug and firearms  conspiracy and criminal            enterprise."   We are  similarly persuaded that  the evidence            linking him  to these offenses is strong.  Although defendant            complains that some of  the evidence against him  is hearsay,            the government  may utilize  reliable hearsay at  a detention            hearing.  See  United States v. Acevedo-Ramos,  755 F.2d 203,                      ___  _____________    _____________            207 (1st  Cir. 1985).    Here, the  second-hand reports  that            defendant is connected to,  and indeed the leader of,  a drug            gang are corroborated by the observations of FBI  agents, the            photographs, the  tape  recordings, and  the evidence  seized            from defendant's home.                  Second, with respect to defendant's personal history and            characteristics, we observe, as  did the district court, that            he has had "prior brushes with the law."  Most relevantly, at            the  time of the current  offense, he was  on release pending            trial in state court for drug and firearm offenses.  Congress            has made it clear that  an "especially significant" danger to            the community is the risk that the drug network will continue            to function while  defendant awaits trial.  See United States                                                        ___ _____________                                         -9-            v.  Portes, 786  F.2d  758,  765  (7th  Cir.  1985).    Given                ______            defendant's  apparent behavior  in  this regard,  as well  as            evidence of the violent nature of the drug-related activities            and  defendant's  leadership role  in  the organization,  the            district  court,   aided  by  the  statutory  presumption  of            dangerousness, supportably found that  he presented a risk to            the  safety  of  the community  if  released  on  bail.   Cf.                                                                      ___            Williams,  753 F.2d at  335 (suggesting that  there was clear            ________            and convincing  evidence that defendants were a danger to the            community where they  had continued  to be  involved in  drug            trafficking despite prior narcotics convictions).                     Finally,  although   the  question  is  closer,  we  are            persuaded that pretrial detention  is also justified on risk-            of-flight grounds.   On the  one hand, defendant  did proffer            evidence of strong family and community ties, offer security,            point  to  faithful appearances  at  prior  court dates,  and            propose a custodial arrangement.  On the other hand, he faces            potentially severe  penalties and  apparently  has access  to            large  amounts of  cash.   Thus,  there  is ample  reason  to            believe  that he has  the incentive and  wherewithal to flee.            Moreover,  it  is  as to  close  issues  like  this that  the            deference  we  afford   the  district   court's  first   hand            determination in bail cases comes into play.                 Affirmed.                 _________                                         -10-
