
USCA1 Opinion

	




        June 5, 1992            [NOT FOR PUBLICATION]                                 ____________________        No. 92-1445                                    UNITED STATES,                                      Appellee,                                          v.                              KIM DE LOS SANTOS-FERRER,                                Defendant, Appellant.                                                                                      ____________________        No. 92-1446                                    UNITED STATES,                                      Appellee,                                          v.                                 PEDRO AYALA-ROSARIO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Joaquin Monserrate  Matienzo, on  brief for  appellant Kim  de los            ____________________________        Santos-Ferrer.            Everett M. DeJesus, on brief for appellant Pedro Ayala-Rosario.            __________________            Daniel  F.  Lopez Romo,  United States  Attorney,  and Antonio  R.            ______________________                                 ___________        Bazan, Assistant United States Attorney, on brief for appellee.        _____                                 ____________________                                 ____________________                      Per  Curiam.    Defendants-appellants  Kim  de  los                      ___________            Santos-Ferrer  ("Santos") and  Pedro Ayala  Rosario ("Ayala")            were arrested by federal agents on February 5, 1992 and later            indicted by a  grand jury for  importing and possessing  with            intent  to  distribute  four   kilograms  of  cocaine.    The            government filed  motions in the district  court for pretrial            detention of Santos  and Ayala under 18 U.S.C.    3142(f).  A            magistrate judge held  detention hearings  and issued  orders            setting bail for Santos at $225,000 with use of an electronic            monitoring  device, and  setting bail  for Ayala  at $150,000            with additional conditions to be imposed upon release.                      The government on February  14, 1992 filed  motions            requesting that the district court undertake a de novo review                                                           __ ____            of the magistrate  judge's orders and, in  the meantime, stay            both  defendants' release.   The  district court  granted the            stays and, on February 28, 1992, conducted a de novo hearing.                                                         __ ____            On  March  27,  1992,  the district  court  entered  an order            denying bail  and directing  detention pending trial  of both            Santos and Ayala.  Santos and Ayala appeal.  We affirm.                      At the  de novo  hearing the  government introduced                              __ ____            the tape  of a consensually monitored  telephone conversation            held on  February 5, 1992, between Santos  and a confidential            informant.   This tape was  played in  open court.   In  this            conversation  the  informant told  Santos  when  and where  a            shipment  of  cargo from  Colombia  would arrive  by  boat in                                         -2-            Puerto  Rico later that day.  The informant made reference to            a Mr. Estela  in Colombia, whom Santos acknowledged  he knew.            It was arranged that Santos would  meet the boat in Ponce and            would  be  driving a  gold  Porsche.   The  informant pressed            Santos  to be  sure  to  bring  the  requisite  money.    The            government also  introduced a  tape of a  second consensually            monitored  telephone conversation  held a  few minutes  later            between the  informant and another individual,  in which this            drug pickup was further planned.                      According  to the government's evidence, later that            day  Santos, Ayala  and Jairo  Torres, a  Colombian national,            appeared  at  the   dock  area  in  Ponce   in  a  Mitsubishi            automobile.    Santos  was  driving.    They  approached  the            informant and  asked him to enter the vehicle.  He did so and            placed  on the  floor in the  back seat  of the  automobile a            wrapped-up package containing four  kilograms of cocaine.  He            asked about the money and was told by Santos that that was no            problem.  The  informant sat in the back,  next to Ayala, and            the  automobile  began to  drive away.   Federal  agents then            ordered  the car  to stop.   Santos,  Ayala, and  Torres were            placed under arrest.                      Although  defendants were driving a Mitsubishi, the            government  introduced  evidence  that  Santos  owns  a  gold            Porsche, the keys to which were seized upon his arrest.  Also            seized from the  automobile were $3,970  in U.S. currency;  a                                         -3-            cellular  telephone  assigned   the  number   to  which   the            confidential  informant's  two  calls  had  been placed;  and            documents belonging  to Santos' sister, Maria  de los Santos-            Ferrer, relating  to a pending cocaine case  in federal court            in Puerto Rico in which she  is a defendant.  A  beeper/pager            was seized  from  Ayala.    A federal  agent  testified  that            through  all this Ayala  sat in the  back of the  car, saying            nothing, until his arrest.                      The  government also  proffered  evidence of  prior            cocaine smuggling activity by Santos and Ayala.  According to            this evidence, on September  24, 1991, following a high-speed            chase, federal  agents found 93  kilograms of cocaine  in two            suitcases in a Jeep  Cherokee.  Also inside the  vehicle were            found a cellular  phone, whose memory revealed  that the last            number dialed on the phone was the number of Santos'  home; a            beeper  belonging to Santos' wife;  and a beeper belonging to            Ayala.   Ayala's beeper  contained messages to  call a liquor            store owned by Santos  and to call  the alias of a  Dominican            national who was later charged with a murder that occurred at            the landing site of the 93 kilograms of cocaine.                      The  Jeep Cherokee  was registered  in the  name of            Ayala's  father and  was  reported  stolen  the next  day  by            Ayala's sister, who gave two  different accounts of the place            from which it had been  stolen.  Ayala later stated  that his                                         -4-            beeper was  in the vehicle  because he was fixing  it the day            before it was seized.                      The  government  also  proffered evidence  that  in            another cocaine prosecution in which three defendants pleaded            guilty, one of the defendants at the time he was arrested had            a  beeper containing a message to call the liquor store owned            by   Santos.     In  yet   another  cocaine   prosecution,  a            confidential informant identified Santos as the source of the            cocaine.                      Evidence in the record showed that Santos has lived            in Puerto Rico, where he has a wife and three minor children,            for the  last thirty  years.   He works in  Puerto Rico  as a            well-known musician, singer, and band leader, and also owns a            liquor store.   Ayala, similarly,  is a lifelong  resident of            Puerto Rico, where he has a  wife and two minor children.  He            works  in Puerto  Rico as  a self-employed  truck  driver and            mechanic.                      The  district  court,  finding  probable  cause  to            believe  that  Santos and  Ayala  had  committed a  narcotics            offense  carrying a maximum term of imprisonment of ten years            or more, invoked the presumption of dangerousness and risk of            flight  in 18 U.S.C.    3142(e).  The  court ordered pretrial            detention  of both Santos and  Ayala on the  grounds "that no            condition or combination of conditions will reasonably assure            the appearance of these defendants as required and the safety                                         -5-            of  the  community."    The  district  court  summarized  its            findings as follows:                           Because  of  their strong  community                      ties,  the question of  whether these two                      defendants  will  probably  flee  is  not                      easily answered although the incentive to                      leave is increased by  the weight of  the                      evidence   in   the  government's   case.                      However,    the    question   of    their                      dangerousness  to  the community  is more                      readily resolved against them.  These are                      not  minor players  on the stage  of drug                      trafficking.     The  vehicles,  beepers,                      cellular  phones,   telephone  tolls  and                      quantities  of  cocaine involved  in this                      and  related  cases,  plus  their  active                      involvement   with   other   major   drug                      traffickers lead to  the conclusion  that                      if  released they will  pose an immediate                      danger to the safety of the community.                      We undertake an independent review of  the district            court's  pretrial detention  decision,  but with  appropriate            deference   to  the  district  court's  first-hand  judgment.            United  States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).            ______________    _______            See  United  States v.  Bayko, 774  F.2d  516, 520  (1st Cir.            ___  ______________     _____            1985).                      We  agree  with   the  district   court  that   the            government made out a strong case that "[t]hese are not minor            players  on the  stage of  drug trafficking."    The evidence            against  both Santos and  Ayala in  the instant  case appears            weighty.  According to this evidence, both men arrived in the            same  automobile for  the pre-arranged  cocaine pickup.   The            arrangement was made by  the confidential informant on behalf            of   an   individual  in   Colombia;  a   Colombian  national                                         -6-            accompanied  Santos  and Ayala  in  the automobile.    It was            Santos whom the confidential informant had been instructed to            call to arrange the pickup.                      In addition, the  government's proffer of  evidence            regarding other incidents of  cocaine smuggling, as  outlined            above, persuasively  suggests that both Santos  and Ayala are            deeply  involved in the  local trade in  cocaine.  In  two of            these incidents, as  well as  in the instant  case, calls  to            Santos' cellular telephone or home, or messages on beepers to            call  Santos' liquor store, appear  to have played  a role in            the  cocaine transaction.  In one of these incidents, as well            as  in  the instant  case, a  beeper  belonging to  Ayala was            seized.  All  of this  evidence makes it  difficult to  think            that the instant  charges against Santos and  Ayala arise out            of an isolated  incident in  which either played  only a  bit            part.                      This  evidence  is  bolstered,  of  course,  by the            presumption of  dangerousness  established  by  18  U.S.C.               1342(e).  The presumption  is triggered in this  case because            both Santos and Ayala  have been indicted for a  drug offense            that carries a maximum  term of imprisonment of ten  years or            more.    Id.; 21  U.S.C.     841(a)(1),  (b)(1)(A).   Even if                     ___            Santos  or  Ayala  were   deemed  to  have  introduced  "some            evidence" to rebut the presumption, "the presumption does not            disappear, but  rather  retains  evidentiary  weight  --  the                                         -7-            amount depending on  how closely  defendant's case  resembles            the congressional paradigm -- to be considered along with all            the  other  relevant  factors."   United  States  v.  Palmer-                                              ______________      _______            Contreras,  835  F.2d  15,   18  (1st  Cir.  1987)  (citation            _________            omitted).   See United States v. Jessup, 757 F.2d 378, 382-84                        ___ _____________    ______            (1st Cir. 1985).                      Given the above-discussed  evidence of  defendants'            apparent involvement in a drug trafficking organization, this            case does indeed closely resemble the Congressional paradigm.            Congress  found  that  "[p]ersons  charged  with  major  drug            felonies  are   often  in   the  business  of   importing  or            distributing dangerous drugs, and thus, because of the nature            of the criminal  activity with which  they are charged,  they            pose a significant risk of pretrial recidivism."  S. Rep. No.            98-225, 98th Cong., 2d  Sess., at 20, reprinted in  1984 U.S.                                                  ____________            Code Cong. & Admin. News 3182,  3203.  Congress felt that  an            "especially significant" consideration in  determining danger            to the community "is  the drug network's ability to  continue            to function while the defendant awaits trial."  United States                                                            _____________            v. Portes,  786  F.2d 758,  765  (7th  Cir. 1985).    We  are               ______            satisfied that the government's evidence, viewed in the light            of the statutory  presumption, establishes  that both  Santos            and  Ayala would pose a  danger to the  community if released            pending trial.                                         -8-                      Although we need not reach the issue, we would also            conclude that  pretrial  detention is  justified on  risk-of-            flight  grounds, although  we agree  with the  district court            that  this question  is much closer.   It  is true  that both            Santos and  Ayala have  close and long-standing  personal and            family  ties  to  Puerto  Rico.    On  the  other  hand,  the            government's evidence strongly suggests  that they are active            participants in a drug  trafficking operation with close ties            to Colombian  drug traffickers.   The evidence  suggests that            Santos himself has been in contact with them.  Thus, there is            ample  reason to believe that both Santos and Ayala have both            the incentive and the wherewithal to flee.                      The  statutory  presumption of  risk-of-flight also            applies  and, although rebutted,  retains evidentiary weight.            "[T]his  presumption reflects  Congress's findings  that drug            traffickers often have the  resources and foreign contacts to            escape to other countries.   Forfeiture of even a  large bond            may  be just  a  cost  of  doing  business,  and  hence  drug            traffickers  pose special  flight risks."   Palmer-Contreras,                                                        ________________            supra, 835 F.2d at 17.            _____                      It is as to close  issues like this, moreover, that            the deference  that we accord to the  district court's first-            hand determinations  in bail cases, O'Brien,  supra, 895 F.2d                                                _______   _____            at 814,  comes into play.   The district court, at  a de novo                                                                  __ ____            hearing,  heard  the  taped  telephone calls  placed  by  the                                         -9-            confidential informant, including  the one  with Santos,  and            the testimony  of  the federal  agent  who made  the  arrest.            Given   the  strength   of   the  government's   evidence  of            defendants' involvement in  a drug trafficking  organization,            we  are not moved to quarrel with the district court's first-            hand   determination   (albeit   conclusorily  stated)   that            defendants' ties to foreign drug traffickers are sufficiently            strong  so  that pretrial  detention  of  both defendants  is            justified on risk-of-flight grounds.                      The  district court's pretrial detention orders are            affirmed.            ________                                         -10-
