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                    [NOT FOR PUBLICATION]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-
