
USCA1 Opinion

	




          September 1, 1992                                [NOT FOR PUBLICATION]                                 ___________________          No. 92-1837                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                            LUIS ERNESTO IGLESIAS-BENITEZ,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Luis Rafael Rivera on brief for appellant.               __________________               Daniel F. Lopez Romo, United States Attorney, Jose A. Quiles               ____________________                          ______________          Espinosa, Senior  Litigation Counsel, and  Rosa Emilia  Rodriguez          ________                                   ______________________          Velez, Assistant United States Attorney, on brief for appellee.          _____                                  __________________                                __________________                    Per Curiam.   Luis Ernesto Iglesias Benitez appeals from                 __________            a  district  court  order  affirming  the  magistrate-judge's            denial of bail pending  trial.  For the reasons  that follow,            we affirm.               ______                 On May  6, 1992,  appellant was  indicted on  charges of            participating  in a  broad-based  conspiracy  to  import  and            distribute multi-kilo  quantities of heroin.   In particular,            defendant is charged in count two with agreeing to provide to            another  defendant  $150,000   for  purchase  of  about   3.5            kilograms  of  heroin  in  Hong  Kong,  to  be  imported  and            distributed in Puerto Rico.   He is charged in  count twelve,            in  combination with others, with transporting about $310,000            in  cash from the United States to a place outside the United            States in furtherance of drug trafficking.  And he is charged            in counts thirteen and fourteen with importing and possessing            with intent to distribute, over two kilograms of heroin.                  On motion by the prosecution for detention without bail,            a  hearing was  held before  the magistrate-judge on  June 4,            1992.   The magistrate-judge heard from  both prosecution and            defense  counsel,  accepting  into  evidence   the  testimony            proffered  in  defendant's  thirteen  page  cross-motion  for            release  on bail.   The  magistrate-judge also  accepted into            evidence the Pretrial Services Report, ultimately adopting it            by reference in his opinion.1                                            ____________________            1.  Both parties accepted the procedure followed here without            objection and both relied on the Pretrial Services  Report in            their  arguments to  the  magistrate-judge and  their  briefs            here.  The  decision to rely  on defendant's proffer,  rather            than live  testimony, was apparently  based on the  fact that            defendant's witnesses were unable to reach the courthouse due                 Defendant is thirty years  old, a native of  Puerto Rico            and  father of  five  children, at  least  three of  whom  he            supports.   The witnesses  he proffered included  his mother,            brother-in-law,  a  former common-law  wife  and two  current            common  law  wives.    This  evidence  was  accepted  by  the            magistrate  as proof  of  strong family  and community  ties.            Defendant has steady  employment as  a grocer in  a store  he            apparently owns.  He proposed a variety of conditions for his            release which  he claimed  would guarantee his  appearance at            trial, including the posting of a  $150,000 real estate bond,            a limited form  of house arrest, supervision by  a custodian,            and the wearing of an electronic bracelet.                  Defendant said that he had known for several weeks prior            to  his  arrest that  he  was  a  target  of the  grand  jury            investigation  and was  planning to  surrender, but  did not.            When  he was arrested, two weeks after the indictment, he was            in  possession  of  his   murdered  brother's  handgun.    He            allegedly  explained  to   Drug  Enforcement   Administration            officials that he had  been given the gun  by a third  person            after his brother's death.   In any event, defendant  did not                                            ____________________            to  inclement  weather.    The hearing  had  previously  been            postponed several times to  allow defendant to obtain counsel            of his choice.                                             -3-            have a license for the gun and also faces charges for illegal            possession of a firearm.  See 18 U.S.C.   922(g)(1).2                                        ___                 In  addition   to  the  federal   charges  against  him,            defendant   is  currently  on  probation  from  a  three-year            suspended  sentence  for  a   felony  violation  of  a  state            controlled-substances law (possession of marijuana).  Another            recent state charge,  statutory rape of  a teenage girl,  was            dismissed when defendant acknowledged paternity  of the child            born to the victim.   Finally, the prosecutor proffered  that            defendant is  currently the subject of  a state investigation            into the murder of a former drug trafficker.                 The  magistrate-judge  found  that  despite  defendant's            strong family and community ties and lengthy residence in the            community,  no condition  or combination  of conditions  will            reasonably assure defendant's  appearance and  the safety  of            the  community.   The district  court affirmed  the detention            order on June 19, 1992.                                     DISCUSSION                 In pretrial detention cases we follow a special standard            of  review:   "independent review,  tempered  by a  degree of            deference to  the determinations made below."   United States                                                            _____________                                            ____________________            2.  Defendant was indicted on July 22, 1992, for violation of            18  U.S.C.     922(g)(1)  (unlawful for  convicted  felon  to            knowingly  receive a  firearm which  has been  transported in            interstate commerce).  The  indictment identifies the handgun            as a .9mm Smith  and Wesson semi-automatic pistol.   See note                                                                 ___            3, infra.               _____                                         -4-            v.  Tortora, 922  F.2d  880, 882  (1st Cir.  1990).   We give                _______            "respect  ... to the  lower court's  factual determinations,"            using "an intermediate level  of scrutiny, more rigorous than            the   abuse-of-discretion   or  clear-error   standards,  but            stopping short of  plenary or de novo  review."  Id.  at 883;                                          __ ____            __            United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).            _____________    _______                  The  government  bore the  burden  of  proving that  no            combination of conditions would reasonably assure defendant's            appearance  or the safety of the community.  United States v.                                                         _____________            Palmer-Contreras,  835  F.2d  15,  17 (1st  Cir.  1987)  (per            ________________            curiam). To meet  this burden the government was  required to            offer clear and convincing  evidence to prove  dangerousness;            and  a preponderance  of  the evidence  to  prove a  risk  of            flight. See United States v.  Patriarca, 948 F.2d 789, 792-93                    ___ _____________     _________            (1st  Cir.  1991).    The  grand  jury  indictment,  however,            facially established probable cause to believe that appellant            had committed an offense  for which a maximum penalty  of ten            years or more is prescribed in the Controlled Substances Act,            21 U.S.C.   801 et. seq. and the Controlled Substances Import                            ___ ____            and Export Act, 21 U.S.C.    951 et. seq.  See  United States                                             __  ___   ___  _____________            v. Vargas,  804  F.2d  157, 163  (1st  Cir. 1986).    Thus  a               ______            rebuttable   presumption  arose   that   no   "condition   or            combination   of  conditions  will   reasonably  assure"  the            defendant's appearance  and "the  safety of any  other person            and the community." 18 U.S.C.   3142(e), (f).                                          -5-                 Although defendant predicts that the  actual sentence he            stands  to receive under the Sentencing Guidelines will be as            short as eight years,  the statutory presumption is triggered            solely  by the seriousness and type of crime charged.  United                                                                   ______            States v. Moss,  887 F.2d 333, 336-37 (1st Cir. 1989).  While            ______    ____            prediction  of  a  lesser  sentence  may  affect  the  weight                                                                   ______            assigned  to the presumption, id.  at 337, we  agree with the                                          __            magistrate-judge  that  defendant's  analysis  here   is  too            "ethereal"  to diminish the  presumption's force.  Especially            in light of his  prior state felony conviction,  defendant is            actually  faced with a possible minimum term of twenty years'                                            _______            imprisonment. See 21 U.S.C.   841(b)(1)(A)(i).                                 ___                 Thus,  to rebut  the  statutory  presumption,  defendant            needed  "some evidence" to show that "what is true in general            is not true in  [his] particular case...."  United  States v.                                                        ______________            Jessup, 757 F.2d 378, 384 (1st Cir. 1985).  The burden is one            ______            of production, not persuasion.  Id. at 380-81.  When met, the                                            __            presumption does not  disappear entirely.   Id. at  383.   It                                                        __            retains  evidentiary weight,  the  amount  dependent  on  how            closely   defendant's   case   resembles  the   congressional            "paradigm."  Palmer-Contreras, 835  F.2d at  18; Jessup,  757                         ________________                    ______            F.2d  at 383.  Its  remaining force is  considered along with            the other relevant factors  in 18 U.S.C.   3142(g).   Palmer-                                                                  _______            Contreras, 835 F.2d at 18; O'Brien, 895 F.2d at 815.            _________                  _______                 The evidence offeredby defendant did little to mitigate                                          -6-            the risk of danger that informs the presumption.  The charges            in  the  indictment  place  defendant  squarely   within  the            paradigm of a drug trafficker who has "both the resources and            foreign contacts  to escape to other  countries with relative            ease in order to avoid prosecution for offenses punishable by            lengthy prison  sentences".   Senate Report No.  98-225, 98th            Congress,  2d Session at 20,  reprinted in U.S.  Code Cong. &                                          ____________            Ad.  News at  3203.   Defendant is  charged with  agreeing to            supply  large quantities  of cash  to finance  drug purchases            abroad  in connection  with  a multi-person  conspiracy  that            spanned  at least two continents.  In addition, defendant has            visible  access  to other  resources  which  might finance  a            flight from prosecution.  He has owned a grocery business for            several   years,  an   interest  in   real  estate,   several            automobiles, and  enjoys "a comfortable  financial condition"            according to  the Pretrial Services Report.   Compare Palmer-                                                          _______ _______            Contreras,  835 F.2d  at  18 (although  defendants were  only            _________            "mules" and had no  individual means of their own,  detention            was   proper  on   risk-of-flight  grounds   where  narcotics            organization  for   which  they   worked  appeared   to  have            significant financial resources to assist their flight).                    Although defendant presented  evidence of strong  family            and  community ties,  offered  security, and  pointed to  his            faithful appearance  at all prior court  and probation dates,            the  government's case  against  defendant is  strong and  he                                         -7-            faces potentially severe penalties.   In light of defendant's            means and the motive to flee, a preponderance of the evidence            supported  the  magistrate-judge's  decision  that  defendant            presented a risk of flight.  See United States v. Dillon, 938                                         ___ _____________    ______            F.2d  1412, 1416-17  (1st Cir.  1991) (court  did not  err in            denying bail on risk of flight grounds where  evidence showed            defendant's connection  to narcotics ring which  could absorb            loss of $200,000 worth of security).                  Moreover,  defendant presented no  evidence to rebut the            presumption  that his release would pose a risk to the safety            of the community.  Congress has  made it clear that "the risk            that a defendant will continue  to engage in drug trafficking            constitutes" a danger to the community.  Senate Report at 13,            reprinted in U.S.C.C.A.N. at 3196.   Defendant was already on            ____________            probation from  one felony  conviction for a  narcotics crime            when he  was indicted  here.   Given the monetary  incentives            involved and  his demonstrated  inclination to remain  in the            drug  trade despite  government intervention, there  is clear            and  convincing  evidence  that  he would  continue  were  he            released  on bail.  See  United States v.  Williams, 753 F.2d                                ___  _____________     ________            329, 335 (4th  Cir. 1985) (where finding  that defendants, if            released, would  continue to  be involved with  narcotics was            based  on the  fact that  they had  already done  so "despite            convictions   and  parole   supervision").     In   addition,            defendant's possession of  a gun  at the time  of his  arrest                                         -8-            adds weight and immediacy to the government's contention that            he presented a danger to the community.3                   Finally, defendant's possession of a firearm despite his            status as  a probationer,  and  his self-professed  knowledge            that he was a target of the instant investigation, manifest a            flagrant  disdain  for  the  authority  of  the  law.    This            circumstance  wholly  undermines  the  value  of  defendant's            claimed  willingness to  submit  to a  variety of  conditions            allegedly designed to assure  his appearance in court.   Most            of  the conditions  proposed "hinge  on the  defendant's good            faith compliance,"  and "can  be too easily  circumvented," a            flaw  which "takes  on  great significance  where ...  little            about  defendant  ...  suggests   that  good  faith  will  be            forthcoming."   Tortora, 922 F.2d  at 886-87.   In any event,                            _______            the  conditions  defendant  proposed,  like the  evidence  he                                            ____________________            3.  This conclusion  is further buttressed by testimony given            at  defendant's  second   detention  hearing,  following  his            indictment for  possession of  the firearm.   The magistrate-            judge's detention  order there recites  a government  agent's            testimony  that the  gun was  loaded when it,  and additional            ammunition,  were seized from defendant's control.  Defendant            reportedly said he  needed the gun  because one Jose  Alberto            Cosme  had attempted  to kill  him.   The agent  testified to            information that defendant is a suspect in the murder of Jose            Alberto  Cosme,  and currently  holds  "a  strong control  on            narcotic distribution"  in a public housing  project.  Though            we rarely consider materials which were not  presented to the            court  directly  below, both  parties  have  referred to  the            subsequent indictment in their briefs, the magistrate-judge's            opinion there is  part of the court's  records, and defendant            had  an  opportunity to  rebut  this evidence  at  the second            hearing.  Tortora, 922 F.2d at 884 n.5; O'Brien, 895  F.2d at                      _______                       _______            814  & n.6; F.R.A.P. 9(a)(b). See United States v. Bayco, 774                                          ___ _____________    _____            F.2d 516, 520 (1st Cir. 1985).                                         -9-            presented  of  strong  family  and community  ties,  has  "no            correlation  with   the  question   of  the  safety   of  the            community," Senate Report at 24, reprinted in U.S.C.C.A.N. at                                             ____________            3207.                   For the reasons stated,  there is sufficient evidence to            conclude that  no combination  of conditions  will reasonably            assure  defendant's   appearance  and   the  safety   of  the            community.  The decision below is affirmed.                                              ________                                         -10-
