
USCA1 Opinion

	




        April 21, 1992          [NOT FOR PUBLICATION]                                 ____________________        No. 92-1126        No. 92-1129                                    UNITED STATES,                                      Appellee,                                          v.                                    PETER KATTAR,                                Defendant, Appellant.                                 ____________________        No. 92-1127                                    UNITED STATES,                                      Appellee,                                          v.                                    SAYED HACHEM,                                Defendant, Appellant.                                                                                      ____________________        No. 92-1128                                    UNITED STATES,                                      Appellee,                                          v.                                     DAVID ABDOO,                                Defendant, Appellant.                                                                                      __________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            James B. Krasnoo on brief for appellant, Peter Kattar.            ________________            Douglas I. Louison and Merrick &  Louison on brief for  appellant,            __________________     __________________        Sayed Hachem.            Albert  F.  Cullen,  Jr.  and  Cullen   &  Butters  on  brief  for            ________________________       ___________________        appellant, David Abdoo.            A.  John Pappalardo, Acting  United States Attorney, and Robert W.            ___________________                                      _________        Iuliano, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                 ____________________                      Per Curiam.   In these consolidated appeals,  Peter                      __________            Kattar, Sayed Hachem and David Abdoo appeal from the decision            of  the United  States  District Court  for  the District  of            Massachusetts  denying their  requests  for  release  pending            trial.                                      BACKGROUND                                      __________                      Appellants  were  indicted, along  with  nine other            defendants,  on charges  of conspiring  to import  hashish in            violation  of 21 U.S.C.    963.   Kattar and  Abdoo also were            charged with conspiring to possess hashish with the intent to            distribute it in  violation of 21 U.S.C.   864.1   The amount            of  hashish  involved  was  approximately three  tons.    The            government  moved  to detain  appellants  under  18 U.S.C.               3142(f).  A magistrate judge held a hearing concerning Kattar            and  Hachem on  September 4, 1991.   As  for Abdoo,  the same            magistrate judge  held hearings on September  9, November 27,            and December 4, 1991.   The magistrate judge determined  that            all three  appellants presented a danger to the community and            that no  conditions or  combination of conditions  of release            would reasonably assure the safety of the community.  He also            found that Kattar and Hachem presented risks of flight.                      On  appeal to  the trial  judge, new  hearings were            held  as to  each  appellant.   The  trial judge  upheld  the                                            ____________________            1.  In a  separate indictment, Kattar was  charged with money            laundering in violation of 18 U.S.C.   1956(a)(3).                                         -3-            detention  orders  entered   by  the  magistrate  judge;   in            addition,  the judge concluded that Abdoo presented a risk of            flight as  well as a danger  to the community.   Although the            judge did  not make written findings, the  transcripts of the            hearings  reveal that  he clearly  articulated the  facts and            reasons upon which he based his affirmance of  the magistrate            judge's detention orders.                                  STANDARD OF REVIEW                                  __________________                      It  is  by  now  well-settled  that  we  employ  an            independent   standard  of  review  which  nonetheless  gives            deference  to the decision of the district court.  See United                                                               ___ ______            States  v.  O'Brien,  895  F.2d 810,  814  (1st  Cir.  1990).            ______      _______            Because  appellate  courts   are  "ill-equipped  to   resolve            factbound  disputes, this standard  cedes particular respect,            as  a   practical  matter,  to  the   lower  court's  factual            determinations."   United  States v.  Tortora, 922  F.2d 880,                               ______________     _______            882-83  (1st Cir.  1990).   Where the  trial court  has taken            evidence  and made  carefully detailed  findings, as  in this            case,  the  degree of  deference is  heightened.   With these            guidelines  in mind, we turn  to the merits  of the detention            orders.                            THE DISTRICT COURT'S FINDINGS                            _____________________________                      The grand jury indictment, which gave  the district            court probable cause to believe that appellants had committed            offenses for which  they could receive sentences of ten years                                         -4-            or  more  for violating  the  Controlled  Substances Act,  21            U.S.C.    801 et seq., triggers  the "rebuttable presumption"            contained in    3142(e).   See United States  v. Dillon,  938                                       ___ _____________     ______            F.2d  1412,  1416  (1st  Cir.  1991).    Thus,  "[s]ubject to            rebuttal  by  the  person,  it  shall  be  presumed  that  no            condition or combination of conditions will reasonably assure            the  appearance of the person  as required and  the safety of            the community.  . . ."   18 U.S.C.   3142(e).   The burden of            persuasion remains  on  the government  and  the  presumption            retains  evidentiary  weight where,  as here  and as  in most            cases, the  defendants come  forward  with "some"  refutatory            evidence.  See  id.; see also United  States v. Perez-Franco,                       ___  ___  ___ ____ ______________    ____________            839 F.2d 867, 870 (1st Cir. 1988) (per curiam).                      As  for   risk  of  flight,  the   government  must            establish by a preponderance  of the evidence that no  set of            conditions of release will  reasonably assure the presence of            the appellants as required.  See United  States v. Patriarca,                                         ___ ______________    _________            948 F.2d  789, 793 (1st Cir. 1991) (preponderance of evidence            standard applies to risk  of flight determinations);  Dillon,                                                                  ______            938 F.2d at 1416.  To measure whether  the government has met            this  burden, the  district court  is required  to take  into            account the relevant factors set forth in   3142(g):  (1) the            weight  of the  evidence  as to  guilt;  (2) the  nature  and            circumstances   of   the   crime   charged;   and   (3)   the            characteristics  of  the  accused,  including  community  and                                         -5-            family   ties,  past   history,   financial   resources   and            employment.  We summarize the findings of the district court.            (1)  Weight of the Evidence                 ______________________                      The evidence  presented by  the government was  the            result of an extensive investigation conducted by the Federal            Bureau of  Investigation, the Bureau of  Alcohol, Tobacco and            Firearms  and  the  United  States  Customs  Service.    This            investigation occurred  over a period  of more than  one year            and  involved  the use  of  a confidential  informant  and an            undercover  FBI agent, both  of whom had  direct contact with            Kattar and Hachem; the  government also employed physical and            electronic  surveillance,  including  the   interception  and            recording of telephone and oral communications.  The district            court  concluded that, in the light  of such direct evidence,            the  government had a very strong case.  The question whether            evidence such as tape recordings will be  admissable at trial            does  not  preclude their  consideration  for pre-trial  bail            decisions.  See Tortora, 922 F.2d at 886.                        ___ _______            (2)  The Nature of the Offense                 _________________________                      Kattar  acted  as  the  organizer  of  the  alleged            conspiracy.   He  is a  United States  citizen.   He has  two            passports, however, one  issued by the United  States and one            issued by  Lebanon.  He also owns property in Lebanon and has            a  bank account  there.   Hachem  is  a citizen  of  Lebanon,                                         -6-            although  he has lived in the  United States for the past ten            years as a resident  alien.  According to statements  made by            Hachem, he  had sufficient  political contacts in  Lebanon to            expedite the importation of the hashish.                      Through  these  contacts  and  others,  Kattar  had            access  to large amounts of hashish grown in Lebanon.  Abdoo,            a resident of Vermont,  and another defendant provided Kattar            with purchasers for the hashish -- an organized crime network            in Canada.  If  successful, Kattar planned to import  hashish            on a monthly basis.  As part of the effort to bring the first            shipment  of hashish into this country, Kattar and Abdoo each            advanced $100,000.  In  addition, Kattar travelled to Lebanon            on two occasions.  Hachem visited Lebanon more frequently; in            fact,  he personally  oversaw  the initial  packaging of  the            hashish.                      As a result  of these efforts, a ship departed from            Lebanon in May 1991.   On it was a sealed container  in which            approximately  600  barrels were  housed.    The hashish  was            packed  inside over 300 of the barrels under layers of olives            and  Lebanese spices.  United States Customs officials seized            the container when the ship arrived in Boston in August 1991.            According  to an FBI agent who testified at the September 9th            hearing  before  the  magistrate  judge, the  three  tons  of            hashish had a street value in Canada of over $90,000,000.            (3)  Individual Characteristics                 __________________________                                         -7-                      (a)  Kattar.  The trial judge acknowledged Kattar's                           ______            longstanding  ties to the community in which he lived and the            presence in his life of substantial family ties.  Contrary to            the government's assertion, the judge accepted Kattar's claim            that he  was legitimately involved in  the financial services            business.   Nonetheless, the  judge determined  that Kattar's            employment  was  "in  no  small part"  connected  to  illegal            activities.   In  addition  to the  drug trafficking  scheme,            there was evidence  that Kattar  intended to act  as an  arms            importer.  Specifically, when the undercover agent, posing as            a foreign  mercenary, asked whether Kattar  could obtain guns            for him, Kattar  indicated that  he could.   At a  subsequent            meeting between Kattar, Abdoo and the agent, Kattar indicated            that Abdoo  would be  securing the  weapons requested  by the            agent.                      The  judge  found  that  Kattar  had  international            contacts and  knowledge  concerning ways  to  surreptitiously            exit from this  country and  flee to Lebanon.   Although  not            noted by the judge,  it is undisputed that Kattar  stated, on            more  than one  occasion, that  he would  not remain  in this            country  should he be apprehended.  The pressure to flee, the            court concluded, was particularly strong  because Kattar, who            is  sixty-one  years  of   age,  faces,  if  convicted,  what            essentially may turn out to be a life sentence.                                         -8-                      (b)  Hachem.   Like  Kattar, the  judge found  that                           ______            Hachem had the international  contacts and know-how to effect            a  departure from this country.   In addition,  as a resident            alien, Hachem, should  he be convicted,  would be faced  with            deportation after his  prison term.  Thus,  the court pointed            out, the only difference to Hachem is "whether or not he will            serve time in an American prison before he's deported."                      (c)   Abdoo.  The judge determined that Abdoo was a                            _____            core figure in Kattar's operation, serving as a broker and as            a financier.  In so finding,  the judge specifically rejected            Abdoo's claim that he had withdrawn from the drug deal before            the  shipment arrived  in Boston.   The  government contended            that  Abdoo also had been involved in two aborted attempts to            smuggle hashish directly into Canada.  These schemes involved            the use of boats, diving teams, and underwater storage of the            drugs at certain buoy markers.  The judge concluded, however,            that  the evidence only  supported a  finding that  Abdoo was            quite familiar with international drug traffic in general and            the above operations in particular.  Abdoo's knowledge of the            details  of the  two  Canadian operations,  the judge  found,            reflected  access   to  non-public  sources   of  information            concerning the activities of organized crime in Canada.                      As for  Abdoo's involvement in the  arms trade, the            trial judge  rejected the government's  allegation that Abdoo            had sought to purchase weapons from an individual in Vermont.                                         -9-            The  evidence,  the  judge  concluded, was  too  conflicting.            Nonetheless,  the judge credited  the information provided by            the  undercover agent  that  Kattar had  identified Abdoo  as            Kattar's  source  of  arms.   The  court  noted  that by  his            silence,   Abdoo   essentially   had    "ratified"   Kattar's            description of Abdoo's role.                      Abdoo  presented  testimony  and   affidavits  from            individuals  who had personal  and professional relationships            with  him.   These  individuals attested  to Abdoo's  general            reputation and charitable activities in the community and his            good  standing as  a respected  businessman.   They generally            stated  that Abdoo  would  not flee  if released,  especially            given the  fact that  he  runs two  successful businesses  in            Vermont.                      The judge acknowledged that the decision whether to            detain Abdoo pending  trial presented a  close question.   On            the  one hand,  Abdoo had  no prior  criminal history  and no            history  of drug  or  alcohol abuse;  his  reputation in  and            impact  on his community were  positive.  On  the other hand,            those who  had submitted character references  obviously were            not familiar with the history and characteristics revealed by            the charges contained in the indictment.                      Weighing  the seriousness of  these charges and the            strength  of the  government's  case against  Abdoo's "public            character" and relation to the community, the court concluded                                         -10-            that there  were no  conditions that would  reasonably assure            Abdoo's presence at trial.  Specifically, Abdoo's familiarity            with international drug operations and his apparent access to            large  amounts  of  cash   supported  a  finding  that  Abdoo            presented a risk of flight.                                      DISCUSSION                                      __________                      On appeal, Kattar argues that it would, in fact, be            very difficult for him to  flee.  He offers to turn  over his            Lebanese  passport, maintaining that  without it, his alleged            Lebanese contacts could not aid him in entering that country.            He  next   contends  that  he  has   no  available  financial            resources.   Because the  first (and,  he claims,  only) drug            shipment was confiscated, Kattar  maintains he never actually            possessed the hashish or realized any profit from selling it.            He emphasizes that if  his real estate holdings and  those of            his wife were used  as security, there is no  likelihood that            he  could  raise the  amount  of money  needed to  flee.   In            addition,  he avers that as  a result of  the interception of            the first  shipment, there  is no existing  drug organization            that could assist him in relocating.  As  for his prior trips            to Lebanon, Kattar avers  that he travelled there reluctantly            and,  on one  occasion,  only at  the  urging of  either  the            confidential informant or the  undercover agent.  Finally, he            points to the  fact that he was released prior  to trial in a            previous federal case and always had appeared as required.                                         -11-                      Hachem argues that  his ten-year  residency in  the            community along  with  the absence  of significant  financial            assets  adequately  rebuts the  presumption  of  flight.   In            addition, as a minor player in the alleged conspiracy, Hachem            contends that he did not have access to any of the money used            to finance  the drug enterprise.   Without  his passport  and            without  aid from  Kattar's organization  which Hachem,  like            Kattar, maintains has essentially  been disabled, he does not            have the means or wherewithal to seek asylum elsewhere.                      Abdoo argues  that the government  did not  produce            "clear and convincing"  evidence that he presented a  risk of            flight.   He points to  his admittedly strong  community ties            and  lack of criminal history.  As  for his access to cash to            fund a departure,  Abdoo maintains that there  was no support            for  the court's finding that he had strong ties to organized            crime in  Canada.   Rather, he  asserts, the evidence  "shows            nothing more  than monies  becoming available to  finance one            deal  from which  Abdoo withdrew."   Thus, Abdoo  states, the            court erred in  finding that no  conditions of release  would            reasonably assure  his appearance  at trial.   Finally, Abdoo            argues that his rights to due process and a speedy trial will            be violated if he is detained  pending trial.  Because of the            number  of  audiotapes  of  surveillance  and the  voluminous            transcripts that must be reviewed, pretrial detention will be            prolonged, he contends, through no fault of his own.                                         -12-                      We  find  that   the  factors  favoring   detention            outweigh those favoring release.   Although Kattar has strong            community and family ties, his own words render him a risk of            flight.  The fact that he appeared in court as  required when            he previously  was under indictment  for mail fraud  does not            change  our  calculation.   The  penal  consequences of  that            offense  were not as severe  as those Kattar currently faces.            As for Hachem, the prospect of deportation if he is convicted            provides a motive  for flight.   This is  not outbalanced  by            Hachem's ten-year residency in this country.                      Although Abdoo  presents a  closer  case, we  think            that the trial judge's finding  that no conditions of release            would  reasonably   assure  Abdoo's  presence  at   trial  is            supported  by the  evidence.   We  are  mindful of  his  past            history and  reputation in the community.   Nonetheless, this            is  no ordinary  drug case.   Abdoo  was a central  figure in            financing  and organizing  a  criminal enterprise  which  was            successful in  importing over three  tons of hashish.   Given            the  gravity  of  the   charges  and  the  strength   of  the            government's case,  the incentive to relocate  is pronounced.            We  note, in relation to Abdoo's due process and speedy trial            claims, that  it is  too  early to  ascertain, without  undue            speculation,  whether  his  pretrial  incarceration  will  be            sufficiently long enough  to trigger constitutional concerns.            See Tortora, 922 F.2d at 889.            ___ _______                                         -13-                      In sum,  we find  that the evidence  indicates that            all three  appellants were  involved in the  kind of  "highly            lucrative" drug operation that prompted Congress to enact the            Bail Reform Act.  As we have explained before, the rebuttable            presumption  contained  in     3142(e)   reflects  Congress's            finding that generally drug traffickers pose special risks of            flight.  See  United States v. Palmer-Contreras, 835 F.2d 15,                     ___  _____________    ________________            17 (1st  Cir. 1987)  (per curiam).   Thus,  we hold that  the            district  court  did not  err  in  determining that,  despite            appellants'  proffer of  evidence,  no conditions  of release            would   reasonably  assure  their   appearance  as  required.            Because  we conclude  that detention  is required  to prevent            flight, we need not address the issue whether appellants also            present a  danger to the  community.   Cf.  United  States v.                                                   ___  ______________            Jessup, 757 F.2d 378, 380 (1st Cir. 1985).            ______                      The judgment of the district court is affirmed.                                                            ________                                         -14-
