
USCA1 Opinion

	




          October 8, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1938                                                UNITED STATES,                                      Appellee,                                          v.                                EDDIE TRAVIESO OCASIO,                                Defendant, Appellant.                                  _________________          No. 93-1939                                    UNITED STATES,                                      Appellee,                                          v.                             ANGEL DAVID TEJADA MORALES,                                Defendant, Appellant.                               _______________________          No. 93-1940                                    UNITED STATES,                                      Appellee,                                          v.                              ANGEL RODRIGUEZ RODRIGUEZ,                                Defendant, Appellant.                                 ___________________          No. 93-1941                                    UNITED STATES,                                      Appellee,                                          v.                                LUIS MAYSONET MACHADO,                                Defendant, Appellant.                                 ____________________          No. 93-1942                                    UNITED STATES,                                      Appellee,                                          v.                                ANGEL FELICIANO-COLON,                                Defendant, Appellant.                                  __________________          No. 93-1943                                    UNITED STATES,                                      Appellee,                                          v.                               LUIS MALONADO RODRIGUEZ,                                Defendant, Appellant.                                  __________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Carlos Lopezde Azua  on brief for appellant,  Eddie Travieso               ___________________          Ocasio.               Eric  M. Quetglas Jordan on  brief for appellant Angel David               ________________________          Tejada Morales.            Roberto Roldan  Burgos on  brief for  appellant Angel  Rodriguez           ______________________          Rodriguez.                 Manuel  San  Juan  on  brief  for  appellant  Luis  Maysonet               _________________          Machado.                Edgardo  L.  Rivera-Rivera,  on  brief  for  appellant Angel               __________________________          Feliciano-Colon.               Benicio Sanchez Rivera,  Federal Public Defender,  and Laura               ______________________                                 _____          Maldonado Rodriguez, Assistant Federal Public  Defender, on brief          ___________________          for appellant Luis Maldonado Rodriguez.               Charles E.  Fitzwilliam,  United States  Attorney,  Jose  A.               _______________________                             ________          Quiles Espinosa,  Senior Litigation  Counsel, and  Esther Castro-          _______________                                    ______________          Schmidt,  Assistant United States Attorney, on brief for appellee          _______          in appeal no. 93-1938.               Guillermo Gil,  United  States  Attorney,  Jose  A.  Quiles-               _____________                              _________________          Espinosa, Senior Litigation  Counsel, and Esther  Castro-Schmidt,          ________                                  ______________________          Assistant United  States Attorney, on brief for appellees in nos.          93-1939, 93-1940, 93-1941, 93-1942 and 93-1943.                                  __________________                                  __________________                 Per  Curiam.    Appellants Eddie Travieso  Ocasio, Angel                 ___________            David  Tejada   Morales,  Angel  Rodriguez   Rodriguez,  Luis            Maysonet  Machado, Angel Feliciano  Colon, and Luis Maldonado            Rodriguez  appeal the  order by  the  United States  District            Court for the District of Puerto Rico detaining them prior to            trial pursuant to 18 U.S.C.   3142(e).  We affirm.                 The  evidence  presented  at the  detention  hearing  is            detailed  in  the  district  court  opinion.    We  summarize            briefly.   On July  1, 1993, Drug  Enforcement Administration            [DEA] Task  Force Agent  Carlos Rivera  observed several  men            gathered  together near  a basketball court.   Eight  or nine            vehicles were parked nearby.  The agent recognized one of the            men,  appellant  Maldonado  Rodriguez,   as  someone  he  had            previously  observed at a known  drug point.  The individuals            appeared  to be waiting  for someone.   Agent Rivera observed            suspicious  behavior which  led him  to believe that  the men            were involved in drug activity.                 After  observing  the  situation  for  several  minutes,            Rivera  and another  agent intervened  and  detained fourteen            suspects.   Inside the  vehicles, the  agents found  fourteen            suitcases,  containing a total  of 225 kilograms  of cocaine,            and  twelve  United States  Department of  Agriculture [USDA]                                         -4-            airport clearance stickers  valid for that afternoon.1   Nine            airline  tickets  for  a  flight  scheduled  to  depart  that            afternoon for New York were found on various defendants.  The            tickets  were issued under  fictitious names and  several had            consecutive numbers.   Some of the suspects were  found to be            carrying large amounts of cash.                 On July 7, a grand  jury indicted appellants for  aiding            and abetting  in the unlawful  possession of, with  intent to            distribute,  225  kilograms  of cocaine  in  violation  of 21            U.S.C.    841(a)(1)  and 18  U.S.C.    2.  After  a detention            hearing, a Magistrate  Judge issued an order  for the release            of appellants on bail ranging from $15,000 to $75,000.  Third            party custody and curfews were also imposed.                  The  government appealed  this  order  and the  district            court granted a stay.  On July  28, the district court held a            hearing  at which Agent  Rivera testified and  the government            proffered  other evidence.   Appellants proffered evidence of            strong  family  ties to  Puerto Rico,  of family  members and            friends willing to assist in their supervision and in placing            bail,  and of  records of  employment.   Two days  later, the            court  issued an  order reversing  the  Magistrate Judge  and            ordering  that appellants  be detained  without bail  pending                                            ____________________            1.   The USDA x-rays all  baggage leaving Puerto Rico for the            continental  United  States looking  for prohibited  food and            plants.    These stickers  are  used by  drug  traffickers to            attempt to avoid inspection.  They cannot be legally obtained            prior to inspection at the airport.                                         -5-            trial.   Relying  on  the  weight  of  the  evidence  against            appellants  and the  amount of  cocaine  involved, the  court            found   that  appellants  had   not  rebutted  the  statutory            presumption of flight established by  18 U.S.C.   3142(e) and            that no  condition or  combination of  conditions of  release            would assure appellants' appearance in court.                   Appellants Travieso Ocasio and Maysonet Machado  contend            that the  district court  erred in  restricting their  cross-            examination  of  Agent  Rivera  at  the   detention  hearing.            Appellants have a statutory right to cross-examine  witnesses            who appear at the hearing. 18 U.S.C.   3142(f).  However, the            court  has the discretion  to limit the  cross-examination on            relevancy grounds. United  States v. Hurtado, 779  F.2d 1467,                               ______________    _______            1480  (11th Cir.  1985); United  States v.  Delker,  757 F.2d                                     ______________     ______            1390, 1398 (3d Cir.  1985).  A bail  hearing is not to be  "a            full  fledged-trial  or  defendant's  discovery  expedition."            United States v. Acevedo-Ramos,  755 F.2d 203, 204  (1st Cir.            _____________    _____________            1985).  In the instant  case, appellants sought to use cross-            examination to establish that  the government's case  against            them was weak.  While the strength  of the case is a relevant            factor at  detention hearings, 18  U.S.C.   3142(g),  in this            case,  the questions  the  court refused  to permit  were, at            best,  of minor  relevance to  the issue  of risk  of flight.                                         -6-            Moreover, any error which might have occurred was harmless in            light of the other evidence of guilt presented.                  As  for  the  merits  of  the  detention  decision,  the            government bears the burden of  proving by a preponderance of            the   evidence  that   no  combination  of   conditions  will            reasonably assure that  defendant will appear for trial.  See                                                                      ___            United States  v.  Patriarca, 948  F.2d  789, 793  (1st  Cir.            _____________      _________            1991); United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir.                   _____________    ______            1991).  Where, as here, a defendant has already been indicted            for  a controlled substance  offense punishable by  a maximum            term  of ten  years or  more,  a presumption  arises that  no            condition or combination of conditions will reasonably assure            appearance at trial.   See id.; United States  v. Vargas, 804                                   ___ __   _____________     ______            F.2d  157, 163  (1st  Cir. 1986);  21  U.S.C.    841(b)(1)(A)            (maximum term  of twenty  years to  life for possession  with            intent to distribute more than five kilograms of cocaine); 18            U.S.C.     3142(e)  (establishing  presumption  because  drug            traffickers   pose  special  risk  of  flight).    While  the            presumption is rebuttable, 18 U.S.C.   3142(e); United States                                                            _____________            v.  Jessup, 757  F.2d 378,  384 (1st  Cir. 1985),  it retains                ______            evidentiary  weight even when  rebutted, Dillon, 938  F.2d at                                                     ______            1416;   United States  v. Palmer-Contreras,  835 F.2d  15, 18                    _____________     ________________            (1st Cir. 1987).  In determining whether any  conditions will            assure the appearance  of defendant, the court must weigh the            specific factors  listed  in 18  U.S.C.    3142(g):  (1)  the                                         -7-            weight  of the  evidence  as  to guilt;  (2)  the nature  and            circumstance   of   the   crime   charged;    and   (3)   the            characteristics  of the accused,  including family ties, past            history, financial  resources and employment.   United States                                                            _____________            v.  Patriarca, 948  F.2d 789,  791-92  (1st Cir.  1991).   We                _________            review  the  court's  determinations   under  an  independent            standard of review which gives  deference to the decision  of            the trial court.   Id. at 791; United States  v. O'Brien, 895                               __          _____________     _______            F.2d  810,  814  (1st Cir.  1990).    "[T]his standard  cedes            particular  respect,  as  a practical  matter,  to  the lower            court's  factual determinations."  Patriarca, 948 F.2d at 791                                               _________            (quoting United States v. Tortora, 922 F.2d 880, 882-83  (1st                     _____________    _______            Cir. 1990)).                 We agree with the district court that the government has            met its  burden  of showing  that  no conditions  of  release            reasonably will assure appellants' presence at trial.                   First, the  evidence against each  appellant is  strong.            All  were observed  by a  DEA  Agent participating,  in broad            daylight,  in  a major  drug  transaction.   Several  of  the            appellants  claim that the evidence shows only their presence            at the  scene of  a crime and  association with  a principal,            neither  of  which  is  sufficient  for  proving  aiding  and            abetting.   United States  v. Alvarez, 987  F.2d 77,  83 (1st                        _____________     _______            Cir. 1993).    However, as  this court  has said,  "criminals                                         -8-            rarely  welcome  innocent  persons as  witnesses  to  serious            crimes."  United States v.  Hernandez, 995 F.2d 307 (1st Cir.                      _____________     _________            1993),  petition for  cert. filed  (Sept.  7, 1993)  (quoting                    ________ ___  ____  _____            United States  v. Ortiz, 966  F.2d 707, 712 (1st  Cir. 1992),            _____________     _____            cert.  denied  113  S.Ct  1005  (1993)).    Moreover,  strong            ____   ______            circumstantial evidence exists that  each appellant was  more            than simply present.                 Travieso   Ocasio   was    observed   participating   in            discussions  with  individuals who  appeared  to  be bringing            packages of drugs to the group.  One of the vehicles in which            two suitcases containing cocaine were  found had been lent to            him that morning,  and a bag  removed from Travieso  Ocasio's            own car was found  to have traces of cocaine.  Tejada Morales            was found  with a first  class passenger ticket for  New York            issued under an assumed  name.  This was one  of four tickets            with consecutive numbers purchased on the same  date from the            same travel agency.   The other three tickets were  possessed            by  other  defendants.   Tejada  Morales  was  also found  in            possession of over  one thousand dollars in cash.   Rodriguez            Rodriguez  was the  owner of  a vehicle  which contained  two            cocaine laden suitcases.   His wallet was found in one of the            suitcases containing cocaine.   Feliciano Colon was  found in            possession of  a first class  airline ticket issued  under an            assumed name.  The ticket was for the same flight as that for            which other defendants had tickets.  Two suitcases containing                                         -9-            cocaine  and two U.S.D.A. inspection stickers were found in a            van registered to him.   Maldonado Rodriguez was the owner of            a jeep in which two suitcases containing cocaine were  found.            Two   inspection  stickers  were  also  found  in  the  jeep.            Moreover, Maldonado  Rodriguez was  observed conversing  with            two  men who  appeared to  be  bringing drugs  to the  group.            Maysonet Machado had a first class airline ticket on the same            flight as the others.  The ticket was issued under an assumed            name and was part of a consecutive series of tickets  held by            various defendants.                   Second,  the crime  with  which appellants  are  charged            indicates   that  appellants  are   part  of  a   large  drug            trafficking  conspiracy  which   sought  to  deliver  several            million  dollars worth of cocaine into the continental United            States.  Such a "'highly lucrative' drug operation[] [was] at            the  center  of   congressional  concern"  in  enacting   the            statutory presumption  in 18 U.S.C.    3142(e).   Jessup, 757                                                              ______            F.2d at  386.  Thus, appellants  are among those  at whom the            statutory  presummption is  specifically aimed.   Dillon, 938                                                              ______            F.2d at 1416.                 Third,  although  the  appellants  may  have  been  only            "mules" in  the operation,  the value  of the  drugs involved            supports the  inference that  appellants are  connected to  a            person  or  organization  with   great  financial  resources.            Palmer-Contreras, 835  F.2d at  18.   Such organizations  are            ________________                                         -10-            able  and may  be  willing  to  finance  appellants'  flight.            Dillon, 938 F.2d  at 1416; Palmer-Contreras, 835  F.2d at 18.            ______                     ________________            The incentive  for flight in  this case is strengthed  by the            weight of the evidence against appellants.  Id.                                                        __                 The district court  did find that appellants  had strong            ties  to the community,  meager financial resources  and were            without substantial  criminal records.   Moreover,  the court            noted that they had  likely played relatively minor roles  in            the drug trafficking scheme.   However, this court  has found            similar characteristics insufficient to rebut the presumption            of  flight where,  as here,  the evidence  is strong  and the            value  of  the  narcotics  is  large.    See  id.  (affirming                                                     ___  __            detention  where defendants were  apprehended on a  boat with            195  kilograms of cocaine  even though defendants  had strong            family  ties, meager financial resources, an absence of prior            drug arrests, and  minor role as mules); Dillon,  938 F.2d at                                                     ______            1415 (affirming  detention  where defendant  was involved  in            negotiating  several million dollar drug deal even though his            role in negotiation was small, he had minimal criminal record            and no  prior drug  convictions, and had  strong ties  to the            community).   Although  this  case,  like  those  in  Palmer-                                                                  _______            Contreras  and   Dillon,  presents  a  close   question,  the            _________        ______            deference we owe  to the district court findings  leads us to            conclude that the  government has met  its burden of  showing                                         -11-            that  no condition  or combination  of conditions  reasonably            will assure appellants' appearance.                 Affirmed.                 ________                                         -12-
