10-2203-cr
U nited States v. Tavarez



                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 6 th day of August, two thousand ten.

PRESENT:               ROBERT D. SACK,
                       REENA RAGGI,
                       GERARD E. LYNCH,
                                 Circuit Judges.

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UNITED STATES OF AMERICA,
                        Appellee,

                             v.                                                       No. 10-2203-cr

JUAN BONILLA, AKA A.D.A. PINTO, YOEL
PICHARDO, NASSIR MATEO, JOSE
ENCARNACION, SANDY BEATO, JUAN ESPINAL,
GABRIEL CANO-MARTINEZ, ELOYS
FERNANDEZ, AKA CHAMBOA, PEDRO
FERNANDEZ, AKA EL MONO, YUDRIS
FERNANDEZ, AKA GURDRIS, LUIS PEREZ,
RANDALL MARTINEZ, AKA RANDALL,
JOSE RODRIGUEZ, WINSTON ROSARIO,
HENRY FIORENTINO, FRANCISCO PRADO,
AKA EL VIEJO, AKA FNU LNU, MARCOS
RODRIGUEZ, AKA MARKITO,
                                                 Defendants,

EMMANUEL TAVAREZ,
                                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                                   RAYMOND L. COLON, New York, New York.

APPEARING FOR APPELLEE:                                    STEPHEN J. MEYER, Assistant United States
                                                           Attorney (Emily Berger, Alexander A. Solomon,
                                                           Assistant United States Attorneys, on the brief),
                                                           for Loretta E. Lynch, United States Attorney,
                                                           Eastern District of New York, Brooklyn, New
                                                           York.

         Appeal from the United States District Court for the Eastern District of New York

(Sandra L. Townes, Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order entered on June 3, 2010, is AFFIRMED.

         New York City Police Officer Emmanuel Tavarez appeals from an order denying him

bail pending trial on charges of conspiracy to commit armed robbery, see 18 U.S.C. § 1951;

conspiracy to distribute various controlled substances including cocaine and heroin, see 21

U.S.C. §§ 841(b)(1)(A)(i), 841(b)(1)(A)(ii)(II), 846; and using and carrying a firearm in

relation to the robbery and drug charges, see 18 U.S.C. § 924(c)(1)(A). We review a district

court’s bail determination, including its findings of fact pertaining to risk of flight, danger

to the community, and the adequacy of any proposed bail conditions, for clear error. See

United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). We will not reverse “unless on



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the entire evidence we are left with the definite and firm conviction that a mistake has been

committed.” United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation

marks omitted); see also United States v. LaFontaine, 210 F.3d 125, 130 (2d Cir. 2000). In

undertaking this review, we assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

       Because Tavarez is charged with a controlled substance offense carrying a mandatory-

minimum term of ten years’ imprisonment and with an offense under 18 U.S.C. § 924(c), a

rebuttable presumption arises that “no condition or combination of conditions will reasonably

assure” his appearance and the safety of the community. 18 U.S.C. § 3142(e)(3); see

generally United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). Tavarez submits that

the district court erred in denying him bail because (1) the government’s case against him

was weak; (2) his alleged involvement in the charged crimes was, in any event, limited; (3)

he had no prior convictions and had served for seven years as a police officer; (4) he owned

a home in New York and had strong family ties to the city; (5) he had not fled when, some

months prior to arrest, he first came under suspicion and was relieved of official duties; and

(6) there is no evidence that he poses a continuing danger to the community. While these

facts certainly warranted careful consideration, we cannot conclude that the district court

clearly erred in determining that the totality of the evidence warranted detention. See 18

U.S.C. § 3142(g) (detailing factors relevant to bail decision).




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       First, the district court reasonably found that the nature and circumstances of the

charged schemes, involving multiple armed robberies of drugs and drug proceeds, “weighed

heavily” against Tavarez’s pretrial release. United States v. Mercedes, 254 F.3d at 437

(reversing pretrial release of defendant charged with conspiracy to commit armed robbery

of drug dealer); see also United States v. Elder, 88 F.3d 127, 129 (2d Cir. 1996) (“[A] Hobbs

Act conspiracy to commit robbery is by definition a conspiracy that involves a substantial

risk that physical force may be used against the person or property of another.”). Although

Tavarez emphasizes his lack of personal involvement in actual violence, evidence that he

supplied confederates with his police firearm and a police bulletproof vest during the crimes

signals that he is hardly divorced from such conduct, a factor weighing against him in any

consideration of danger. Further, Tavarez’s likely Guidelines range of thirty years’ to life

imprisonment provides a strong incentive for him to flee.

       Second, the district court finding that the case against Tavarez “appears to be . . .

strong,” Bail Appeal Tr. at 6; see 18 U.S.C. § 3142(g)(2), is supported by the interlocking

statements of various confederates; by physical evidence seized during some of the robberies,

including police badges bearing Tavarez’s shield number or a clumsy alteration of that

number; and by various post-arrest statements made by Tavarez in which he admits

supplying the robbers with items used in the charged crimes and even identifies his motive,

i.e., financial difficulties stemming from a divorce. Although Tavarez insists that the

magistrate judge concluded that the government’s case was weak, he identifies nothing in the

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record to support that assertion. In any event, the government did not present the magistrate

judge with much of the physical evidence it proffered to the district court, nor with Tavarez’s

post-arrest statements. Significantly, in those statements, Tavarez not only strengthened the

government’s case against him; he also raised flight concerns by stating that he could not go

to jail.

           Third, the district court reasonably found that, even though Tavarez had close family

in New York and had surrendered his passport, he posed a flight risk because he had relatives

in the Dominican Republic and had made frequent trips there in recent years. See 18 U.S.C.

§ 3142(g)(3)(A); United States v. El-Hage, 213 F.3d 74, 80 (2d Cir. 2000) (affirming district

court determination that defendant was “quite capable of flight” where, inter alia, he had

“extensive history of travel and residence in other countries”). Tavarez’s employment as a

police officer did not render him less of a flight risk because Tavarez has been suspended

from that job. Further, the same evidence that strongly signaled Tavarez’s guilt indicated

that he had abused that position of particular trust by providing co-conspirators with police

paraphernalia that they used in committing violent crimes.1 Such abuse of trust would

understandably give a district court reason to doubt Tavarez’s word as promising to abide by

bail conditions.


           1
         Further, Tavarez’s police career had not been without incident. He had been (1)
issued a summons for disorderly conduct arising from his failure to comply with directions
of a hospital police department, and (2) referred to the New York City Police Department’s
Internal Affairs Board for assaulting his own brother.

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       Accordingly, even though Tavarez offered some evidence to challenge the statutory

presumption of flight and danger, we conclude that the district court acted well within its

discretion in finding that the government had established from the totality of the evidence

that he nevertheless more likely than not posed a risk of flight and clearly and convincingly

posed a continuing risk of danger to the community. See United States v. Mercedes, 254

F.3d at 436 (reversing release of defendants charged with robbery conspiracy on secured bail,

and observing that once defendant has met burden of production relating to presumption of

flight and danger, “the presumption favoring detention does not disappear entirely, but

remains a factor to be considered among those weighed by the district court”).

       We have considered Tavarez’s other arguments on appeal and conclude that they lack

merit. Accordingly, we AFFIRM the district court’s June 3, 2010 order.

                            FOR THE COURT:
                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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