
USCA1 Opinion

	




          September 17, 1992    [NOT FOR PUBLICATION]                                 ___________________          No. 92-1839                                                UNITED STATES,                                      Appellee,                                          v.                                 JAIRO GIRALDO PARRA,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Luis Rafael Rivera on brief for appellant.               __________________               Daniel F.  Lopez Romo,  United  States Attorney,  Carlos  A.               _____________________                             __________          Perez-Irizarry,  Assistant United  States Attorney,  and Jose  A.          ______________                                           ________          Quiles  Espinosa,   Senior  Litigation  Counsel,   on  brief  for          ________________          appellee.                                  __________________                                  __________________                 Per Curiam.  Defendant  Jairo Giraldo-Parra appeals from                 __________            an order denying his request for pretrial bail.  We affirm.                                           I.                 Giraldo-Parra  and five  codefendants have  been charged            with violating 21 U.S.C.   841(a)(1), 846 and 18 U.S.C.  2 by            participating  in  a conspiracy  to  possess  with intent  to            distribute  cocaine and  heroin between  August  and December            1991.1     During  that  time,  Giraldo-Parra,   a  Colombian            national, owned  a  restaurant in  the  Hato Rey  section  of            Puerto Rico called "Mi Peque a Colombia."  The thirteen count            indictment  alleged that the  defendants used this restaurant            as a front  for their drug trafficking activities.   Giraldo-            Parra was specifically  charged with aiding  and abetting  in            possessing drugs for distribution and distributing 27.4 grams            of heroin on August 29, 1991, 27 grams of heroin on September            25, 1991, 489.1  grams of  cocaine on December  6, 1991,  and            .767 grams of heroin  and 5.941 grams of cocaine  on December            12, 1991.  The Drug Enforcement Administration (DEA) arrested            the  five co-defendants  on May  27, 1992  but was  unable to            locate  Giraldo-Parra, who  voluntarily  surrendered  to  the            authorities on the following day.                   A detention  hearing was held before  a magistrate judge            on  May 29,  1992.   The transcript  of that  hearing  is not            before  us  but   the  magistrate  judge's  detention   order            indicates that Immigration  and Naturalization Services (INS)            employee  Richard Escalera  and DEA  agents Pablo  Rivera and                                            ____________________            1.  The codefendants are Oscar Gonzalez-Lopez, Daniel Atilio-            Adinolfi, Victor Rodriguez-Alvarez, Edgar Rodriguez-Velazquez            and Jorge Omar Lopez-Almeida.             James Baker testified  for the  government.   Giraldo-Parra's            counsel made  a proffer on his  behalf.  On June  9, 1992 the            magistrate judge  issued a written  detention order requiring            that  all the  defendants,  including  Giraldo-Parra,  remain            committed.   The magistrate  judge found that  the defendants            had been  charged with  drug related offenses  that triggered            the presumption that they  posed a risk of flight  and danger            to the community  under 18  U.S.C.  3142(e).2   Based on  the            evidence discussed below, the  magistrate judge found that no            conditions could assure Giraldo-Parra's presence in court  or            safety of  the  community.    Giraldo-Parra  "appealed"  this            decision to the district court.                   A second evidentiary hearing  was held before a district            judge.  At the  conclusion of the hearing the  district judge            sustained  the findings  of the  magistrate judge  and denied            bail.  This appeal followed.                                          II.                                            ____________________            2.  18 U.S.C.  3142(e) provides, in relevant part, that                      Subject  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                      if  the judicial officer finds that there                      is  probable cause  to  believe that  the                      person  committed an offense  for which a                      maximum term of imprisonment of ten years                      or more  is prescribed in  the Controlled                      Substances Act (21 U.S.C.  801  et seq.),                      ... .                                         -3-                 The record before us  consists of the transcript  of the            district court's hearing and the magistrate judge's detention            order. We  have observed that meaningful  appellate review is            possible if either the judicial officer initially considering            the matter or the district judge provides a written statement            of  reasons underlying a detention or  release order.  United                                                                   ______            States  v. Tortora, 922 F.2d  880, 884 (1st Cir. 1990)(citing            ______     _______            United  States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989)(per            ______________    ____            curiam)).   As  the district  judge sustained  the magistrate            judge's findings, we recite the evidence the magistrate judge            found and  supplement this  description  with the  additional            evidence adduced at the district court hearing.                   DEA agent Pablo Rivera generally related how one or more            of  the defendants sold drugs to undercover agents at or near            Giraldo-Parra's restaurant on five  occasions.  On August 21,            1991 defendant Oscar Gonzalez-Lopez informed the  agents that            his  source had the following drugs for sale: 1/8 kilogram of            heroin for $29,000,  1 ounce of heroin for  $7500, and 1 gram            of heroin for $250.  Gonzalez Lopez told the agents  to go to            Giraldo-Parra's  restaurant.   While the  agents were  parked            outside, Gonzalez Lopez brought  them a package of cigarettes            containing  heroin.    On  August 29,  1991,  Gonzalez  Lopez            arranged to sell  the agents  an ounce of  heroin for  $7500.            DEA Agent Pablo Rivera testified that this sale was conducted            outside the restaurant  and that defendant  Rodriguez Alvarez                                         -4-            required  the  agents to  pay  first,  after which  Rodriguez            Alvarez   went  inside  the   restaurant  and  retrieved  the            heroin.3  Later on,  Giraldo-Parra arrived at the restaurant.            Rodriguez Velazquez gave him a folded pack of money.                   On September 13, 1991 Rodriguez Alvarez sold an ounce of            heroin  to an  undercover  agent for  $7000 after  meeting at            Giraldo-Parra's  restaurant.     On  September  25th,   after            exchanging  an   ounce  of   heroin  for  $7000   at  another            restaurant, Rodriguez  Alvarez took  the money to  Mi Peque a            Colombia, where  Giraldo-Parra and two  other defendants were            waiting.   Rodriguez Alvarez  asked  defendant Daniel  Atilio            Adinolfi  for  his  commission.    Atilio  Adinolfi  referred            Rodriguez Alvarez to Giraldo-Parra to collect his commission.            Giraldo-Parra told  Rodriguez Alvarez  that $200  was missing            from the proceeds of the sale.                     An informant  met  defendant Daniel  Atilio Adinolfi  at            Giraldo-Parra's restaurant on December 6, 1991 and  purchased            1/2 kilogram of cocaine for $5000.  DEA agent Jefferson Moran            described this transaction in more detail before the district                                            ____________________            3.  During   the  interval  between  the  magistrate  judge's            decision  and the  district  court hearing  Rodriguez Alvarez            began cooperating  with the government.   The evidence before            the district court indicated that Rodriguez Alvarez delivered            an  ounce of  heroin to  undercover agent Jefferson  Moran on            August 29,  1991, after  obtaining the heroin  from defendant            Edgardo  Rodriguez Velazquez (Giraldo-Parra's nephew).  After            the   sale  was   completed,  Giraldo-Parra   telephoned  the            restaurant and was told  that Rodriguez Alvarez had delivered            the heroin.                                           -5-            court.    According  to  Moran,  the  informant  entered  the            restaurant and met with defendant Daniel Atilio Adinolfi.  As            the informant and Atilio  Adinolfi were negotiating, a second            undercover officer entered  the restaurant and  overheard the            informant tell Giraldo-Parra that he was interested in buying            a car from Atilio Adinolfi.  Giraldo-Parra told the informant            to take a long drive with Atilio Adinolfi and to  buy the car            if he liked it.   The informant and Atilio Adinolfi then left            the  restaurant and  entered  a Burgundy  Ford.   They  drove            around the corner and consummated the sale.  Their activities            were  surveilled by the DEA and by another codefendant, Jorge            Lopez Almeida,  who had  followed the  Ford on  a motorcycle.            The informant and Atilio  Adinolfi returned to the restaurant            and parked out  front, still  followed by the  DEA and  Lopez            Almeida.   The informant exited  the restaurant with  a brown            paper  bag and  departed with  the undercover  agent.   Lopez            Almeida followed them until the  local police stopped him  to            prevent his discovery of the undercover operation.                   At  the  district  court  hearing  agent  Moran  further            related  that  on December  12,  1991,  DEA  agent Ortiz  and            confidential  informants  went to  the  restaurant  to buy  a            sample of  heroin and to obtain  6 grams of cocaine  that had            been  missing from the 1/2 kilogram sold on December 6, 1991.            An  informant entered  the  restaurant and  greeted defendant            Daniel  Atilio Adinolfi, who indicated that Giraldo-Parra had                                         -6-            the  heroin  and  that  the  informant  should  wait  because            Giraldo-Parra was  speaking to  other people.   The informant            then saw  Atilio Adinolfi take  something from Giraldo-Parra.            Atilio Adinolfi  immediately returned  to  the informant  and            gave him the sample of heroin  and six grams of cocaine  that            had been  missing from the  half kilogram.   Atilio  Adinolfi            told  the  informant  he could  pay  for  the  heroin on  the            following day.                   Agent  Moran testified that  the DEA considered Giraldo-            Parra to  be a significant offender  because DEA intelligence            indicated  that  he was  the  head  of  an organization  that            imported a  new type of  Colombian heroin, 90-94%  pure, that            had  been  trying to  make its  way  into the  United States.            Agent Amador testified that Rodriguez Alvarez said that while            incarcerated together at the state penitentiary Giraldo-Parra            and  two  other  defendants  threatened him  because  he  had            allowed an  undercover agent to  penetrate the  organization.            Giraldo-Parra allegedly instructed  Rodriguez Alvarez to tell            the authorities  that he alone (i.e.,  Rodriguez Alvarez) was            responsible for distributing narcotics.                   The evidence before the magistrate judge and judge as to            Giraldo-Parra's   history    and   personal   characteristics            indicated that Giraldo Parra is  a resident alien who entered            Puerto  Rico  legally  around  1980.    He  married, had  two            children, and divorced in 1988.  His ex-wife reported that he                                         -7-            provided child support  payments.  He  has been employed  for            the  past three  years  as an  encyclopedia salesman  earning            approximately  $28,000 per year.  He has no real property and            sold  the restaurant  and  a video  store  that he  owned  in            December 1991.   Giraldo-Parra's  family ties to  Puerto Rico            included a  half-brother and  common law wife,  Aixa Santiago            Nieves, with whom  he had lived for approximately three years            and had another child.   Santiago  related that Giraldo-Parra            visits his  two children  from his previous  marriage weekly.            She described their own relationship as stable, although they            had quarrels.   She stated that  he is diabetic and  that she            takes food to  him in  prison.  Santiago  testified that  her            parents were willing to post their house, which she estimated            had a $100,000 value, as collateral for Giraldo-Parra's bail.                 Pretrial  Services  Officer  Jose Oben  deemed  Giraldo-            Parra's relationship with Aixa Santiago Nieves to be unstable            because  she had indicated  that they had  separated.4  While            Giraldo-Parra had  no prior  arrests in Puerto  Rico, shortly            after  his  arrest  the INS  filed  a  detainer against  him.            Officer  Oben recommended  that, in  view of  the presumption            that Giraldo-Parra presented  a risk of flight  and danger to                                            ____________________            4.  DEA  Agent Domingo  Carrasquillo  testified that  another            confidential  informant had  informed the  DEA  that Giraldo-            Parra  was  involved  with   the  daughter  of  another  drug            trafficker.   He allegedly was with her when the DEA arrested            the other defendants.                                          -8-            the community, Giraldo-Parra should be detained pending trial            particularly  because he appeared to be deportable due to the            INS' detainer.                  The  magistrate judge concluded that notwithstanding the            evidence  of Giraldo-Parra's  family and  community  ties, in            view  of the  statutory  presumption, the  fact  that an  INS            detainer  had been filed, and  the fact that his relationship            to  his  common  law  wife appeared  unstable,  Giraldo-Parra            continued  to pose both  a risk of  flight and  danger to the            community. In sustaining the magistrate judge's findings, the            district court  considered the  same factors as  well as  the            evidence that Giraldo-Parra is the leader of the organization            charged with conspiracy, that the drug sales involved cocaine            of high  purity and a new  type of heroin, and  that Giraldo-            Parra  had   participated  in  threatening   the  cooperating            defendant.5    The court  also  viewed  the evidence  against            Giraldo-Parra as strong.                                           III.                 On  appeal, Giraldo-Parra  argues that  he  succeeded in            rebutting  the presumption  of flight  and dangerousness  and            that the government failed to meet its burden of proving that            no conditions or  combination of conditions could  reasonably            assure  his  appearance  at  trial   or  the  safety  of  the                                            ____________________            5.  We note that there  was no evidence on the  purity of the            cocaine.                                         -9-            community.    In  particular,  the defendant  says  that  the            evidence  against him  is weak  because  none of  the alleged            transactions took place inside the restaurant and there is no            direct evidence of his participation in a sale of drugs.                    We  afford  the  district  court's   order  independent            review, with  deference to the determination  of the district            court.   United States v.  Patriarca, 948 F.2d  789, 791 (1st                     _____________     _________            Cir. 1991).  This  standard "represents an intermediate level            of  scrutiny, more rigorous  than the  abuse-of-discretion or            clear-error standards,  but stopping  short of plenary  or de                                                                       __            novo  review."  United States  v. Tortora, 922  F.2d 880, 883            ____            _____________     _______            (1st  Cir.  1990).    "[I]ndependent review  ...can  vary  in            intensity according to the care put into the decision below."            Patriarca,  948  F.2d  at  794.   We  consider  whether  "due            _________            attention  was given  to  all the  statutory  factors [in  18            U.S.C.   3142(g) and]  ... shall  give such  deference  as we            think the  care and consideration manifested  by the district            court  warrant."  United States v. O'Brien, 895 F.2d 810, 816                              _____________    _______            (1st Cir. 1990).                 First,  it is  clear  that the  district court  properly            determined  that  the  presumption   that  "no  condition  or            combination   of  conditions   will  reasonably   assure  the            appearance of the ... [defendant]  as required and the safety            of  the community  ... "  applied to  Giraldo-Parra.   See 18                                                                   ___            U.S.C.   3142(e).   Eight  of  the  thirteen  counts  in  the                                         -10-            indictment  charged  him with  violations  of  the Controlled            Substances  Act,   21  U.S.C.    841(a)(1)  and   846.    The            indictment  established   probable  cause  to   believe  that            Giraldo-Parra committed one or more offenses for which he may            receive a sentence  of ten years of  more.  United  States v.                                                        ______________            Vargas, 804 F.2d 157, 163 (1st Cir. 1986).6                ______                 Notwithstanding   the    applicability   of    3142(e)'s            presumption, the government retains the  burden of persuading            the  court  by  a preponderance  of  the  evidence  that "'no            condition   or  combination  of  conditions  will  reasonably            assure' the defendant's presence at trial."  United States v.                                                         _____________            Perez  Franco, 839  F.2d  867, 870  (1st Cir.  1988)(citation            _____________            omitted).  See also United States v. Patriarca, 948 F.2d 789,                       ___ ____ _____________    _________            793 (1st Cir. 1991)(upholding district court's application of            preponderance of the evidence  standard).  In contrast, proof            that  no conditions  of  release will  reasonably assure  the            safety of any other person or the community must be by "clear            and convincing evidence."  See 18 U.S.C.  3142(f).                                       ___                 A defendant  need only produce "some  evidence" to rebut            the  presumption of flight.   Perez-Franco, 839  F.2d at 870;                                          ____________                                            ____________________            6.  Giraldo-Parra  argues  that he  is  likely  to receive  a            sentence  of  less  than   ten  years  under  the  Sentencing            Guidelines  because  the  quantities  of drugs  involved  are            relatively  small and he has  no criminal record.   This does            not  render the statutory  presumption inapplicable.  Rather,            these  considerations   are  relevant   to  the   weight  the            presumption  is afforded. See United States v. Moss, 887 F.2d                                      ___ _____________    ____            333, 337 (1st Cir. 1989).                                         -11-            United States v. Jessup, 757 F.2d 378, 384 (1st  Cir. 1985).             _____________    ______            Thereafter,  the presumption retains  evidentiary weight, and            "the magistrate or judge  should still keep in mind  the fact            that Congress  has found that [drug] offenders,  as a general            rule,  pose special risks of flight.  The magistrate or judge                        _______            should  incorporate that  fact  and finding  among the  other            special  factors  that Congress  has  told him  to  weigh ...            [under 18  U.S.C.  3142(g)]."7    Applying  these principles,                                            ____________________            7.  Under 18 U.S.C.  3142(g),  the district court is required            to consider:                 (1) the  nature and  circumstances  of the  offense                 charged, including whether  the offense is a  crime                 of violence or involves a narcotic drug;                 (2) the weight of the evidence against the person;                  (3) the history and  characteristics of the person,                 including-                      (A) the person's character,  physical and                      mental     condition,    family     ties,                      employment,  financial resources,  length                      of residence in the  community, community                      ties, past conduct,  history relating  to                      drug or alcohol abuse,  criminal history,                      and record concerning appearance at court                      proceedings; and                      (B) whether,  at the time of  the current                      offense  or  arrest,  the person  was  on                      probation, on parole, or on other release                      pending  trial,  sentencing,  appeal,  or                      completion  of  sentence  for an  offense                      under Federal, State, or local law; and                   (4) the  nature and  seriousness of the  danger to                 any  person or the community that would be posed by                 the person's release...  .                                         -12-            we  conclude  that  the  government  has met  its  burden  of            persuasion that Giraldo-Parra poses a risk of flight.                   Giraldo-Parra  is  alleged  to   be  the  leader  of  an            organization  involved in  importing high purity  heroin into            the  United  States  from  Colombia.   While  the  quantities            involved in  the transactions are arguably  small, the heroin            was said to be a "new breed" of "very high  quality" that had            been  trying to make its way to  the United States. (App. 31-            32)   This  indicates that  Giraldo-Parra is a  drug offender            with important  foreign connections and  that the presumption            that  he posed a risk  of flight was  due considerable weight            even in  the face  of the  evidence Giraldo-Parra  adduced in            rebuttal.    We  also  think  that  the  district  court  was            warranted in  concluding that  the evidence  against Giraldo-            Parra is strong, particularly  in view of Rodriguez Alvarez's            statements.   To be sure,  the evidence before the magistrate            judge  was considerably  less than  that before  the district            judge.    The government  only  placed  Giraldo-Parra at  the            restaurant on two occasions  (August 29 and September  25) at            the hearing before the magistrate judge and on both occasions            he did not arrive until after the sales had been consummated.            Nevertheless,   the  evidence  before  the  magistrate  judge            suggested  that Giraldo-Parra received  the proceeds of those            sales.  This conclusion  was bolstered by Rodriguez Alvarez's            statements as described  to the district judge.  In addition,                                         -13-            agent  Moran's testimony suggested that Giraldo-Parra invited            the informant to test the cocaine that was the subject of the            December  6th sale  and that  he also  gave defendant  Atilio            Adinolfi the sample of heroin given to the undercover  agents            on  December 12th.   The  circumstantial and  direct evidence            before the  district court thus tended  to directly implicate            Giraldo-Parra in drug trafficking.                 The evidence  tending to rebut the  presumption was that            Giraldo-Parra had  resided in Puerto Rico  since around 1980,            had  a   positive  employment  history   as  an  encyclopedia            salesman, and family  ties to three children, his  common law            wife, and  half brother.   In addition, Giraldo-Parra  has no            criminal   record  and   voluntarily   surrendered   to   the            authorities after his counsel advised him to do so.  While he            is licensed to  carry a gun,  he has no history  of violence.            Various  persons may be able to post property to secure bail.            Weighing  against these  factors  was the  evidence that  his            relationship to his common  law wife is unstable and  that he            participated  in  threatening   the  cooperating   defendant,            Rodriguez Alvarez.  In view of the fact that the defendant is            not  a citizen, the evidence  against him is  strong, and the            offenses with  which he stands charged are  serious, we agree            that the  evidence  of Giraldo-Parra's  family and  community                                         -14-            ties does not appear  strong enough to assure  his appearance            at trial.8                 Affirmed.                  _________                                            ____________________            8.  As we conclude that  the district court was justified  in            concluding that Giraldo-Parra poses a risk of flight, we need            not  consider  whether  the   evidence  met  the  "clear  and            convincing" standard of proof  on the issue of dangerousness.            See  18 U.S.C.  3142 (f).  Cf.  United  States v. Jessup, 757            ___                        ___  ______________    ______            F.2d at 380.                                              -15-
