
USCA1 Opinion

	




          February 10, 1992                                 ___________________          No. 91-2208                                                UNITED STATES,                                      Appellee,                                          v.                                EDGARDO PUBILL RIVERA,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Jose Antonio (ABI) Lugo on brief for appellant.               _______________________               Robert S. Mueller, III, Assistant Attorney General, Mary Lee               ______________________                              ________          Warren, Chief  Narcotic and  Dangerous Drug  Section, William  H.          ______                                                ___________          Kenety and Daniel F. Lopez-Romo, United States Attorney, on brief          ______     ____________________          for appellee.                                  __________________                                 __________________                     Per Curiam.  Appellant, Edgardo Pubill-Rivera,  appeals                    __________          from the  decision of  the United States  District Court  for the          District of Puerto Rico denying  his request for release  pending          trial.                                      BACKGROUND                                      __________                    Appellant  was  indicted,  along  with  over  25  other          persons, on  charges of  conspiring to  possess cocaine  with the          intent  to  distribute  it  and  with  aiding  and  abetting  the          possession  of cocaine  with the  intent to  distribute it.   The          amount of cocaine involved was over 10,000 kilograms.   According          to the government, appellant played  a leading role in this large          drug  trafficking conspiracy.   A detention  hearing was  held on          September 20, 1991.  The hearing revealed the following evidence.                    Appellant  has  seven  children,  several  of  whom  he          supports.  He  has lived with  his common-law  wife for the  past          eight years.   At the time of his  arrest, appellant was employed          at  the  gas  station owned  by  his  father.   He  was receiving          approximately $2,500  per month  as salary.   Appellant  owns the          home  in  which  his  father  lives;  it  is worth  approximately          $80,000.   Appellant refused  to divulge  the existence of  other          financial assets  to pretrial  services.   Appellant stated  that          friends and  family were  willing to post  eight parcels  of real          estate worth over $440,000 as security for bail.                      As for appellant's past criminal activity, he has three          prior  narcotics  convictions.      Upon  his  first  conviction,          appellant  was  sentenced  to  probation.    However,   probation          subsequently was  revoked due to a violation of the terms of this          release.    Nonetheless,  appellant  averred  that  he  had  been          released on bail  in all three  cases and always had  appeared in          court when required.                     The government  cross-examined appellant's sister.   In          addition to the  home in  which their  father lives,  appellant's          sister  stated  that  she,  appellant  and  their  father  own  a          laundromat and  that appellant  owns a second  home.   She stated          that  she had, on one occasion, purchased a bank check for $8,000          or $9,000  for her brother; she did not  know how her brother had          obtained the money for this check.  The government also proffered          the following evidence.    Although appellant's tax return showed          a yearly  income  of only  $24,000, appellant  owned assets  that          indicated unexplained sources of income.  These assets included a          condominium, a  $68,000 speedboat  apparently paid  for in  cash,          $195,000  in  real   estate  equity  and  three   bank  accounts.          Appellant has a passport and  has travelled outside of the United          States.  In addition,  when he was arrested he possessed two fake          drivers' licenses.    Finally, under  the Sentencing  Guidelines,          appellant probably would  be subject to a minimum  sentence of 25          years.                         The magistrate judge  before whom the hearing  was held          ordered  appellant detained  prior to  trial.  He  considered the          magnitude of  the drug enterprise  of which appellant was  a part          and the length  of the minimum sentence to  which appellant could          be  exposed.    Based  on these  factors,  the  magistrate  judge                                          3          concluded  that appellant  could  not be  trusted  to follow  any          conditions of  release.  In  addition to  finding that  appellant          would pose a danger to  the community if released, the magistrate          judge  determined that the  seriousness of the  charges appellant          faces, along  with the  unexplained sources  of income,  provided          appellant with the  incentive to flee.  The  district court judge          affirmed the detention order, rejecting appellant's argument that          18  U.S.C.      3142(g)  prevented  the  magistrate   judge  from          considering defendant's sources of income.                                      DISCUSSION                                      __________                    Based upon the transcript of the detention hearing, the          district  court's  findings  and  the  parties'  briefs,  we  now          consider the merits of the appeal.   A special standard of review          applies to pretrial detention orders:                         We  approach  our  task  mindful of  our                    obligation  to  afford   independent  review,                    tempered  by a  degree  of  deference to  the                    determinations made below.   Recognizing that                    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.                    Hence,  independent   review  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,  882-83 (1st  Cir.            _____________      _______            1990) (citations omitted).                      The grand jury  indictment provided probable  cause            to  believe that appellant had committed an offense for which            a  maximum term  of ten  years or  more is prescribed  in the                                          4            Controlled  Substances Act,  21 U.S.C.    801  et. seq.   See                                                           __  ___    ___            United States  v. Vargas, 804  F.2d 157, 163 (1st  Cir. 1986)            _____________     ______            (per curiam).   Thus, the statutory presumption  contained in            18  U.S.C.   3142(e)  became applicable.   This provides that            "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."   To            rebut  this presumption,  appellant need  only  produce "some            evidence" to show that  "what is true in general  is not true            in [his]   particular case . . . ."  United States v. Jessup,                                                 _____________    ______            757 F.2d  378, 384  (1st Cir.  1985).   This is  a burden  of            production, not persuasion.   Id. at  380-81.  However,  even                                          __            assuming  appellant successfully  rebuts  the presumption  by            producing "some  evidence," the bubble does not "burst."  Id.                                                                      __            at 383.  The burden  of persuasion remains on the government,            but the rebutted  presumption retains evidentiary force:   it            becomes a  factor to be  considered in addition to  the other            relevant factors  in    3142(g).   United  States v.  Palmer-                                               ______________     _______            Contreras, 835 F.2d 15, 18 (1st Cir. 1987) (per curiam).            _________                      On  the facts before us we  agree with the district            court that a detention order was justified under the terms of            the statute.  Congress has made it clear that  "the risk that            a  defendant  will  continue to  engage  in  drug trafficking            constitutes a  danger to the  'safety of any other  person or            the community.'"  S. Rep. No. 98-225, 98th Congress, 2d Sess.            13 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3196.   Here,                       ____________                                          5            there  is  the  risk  that  appellant  might  return  to  the            narcotics  trade  if  released   on  bail;  appellant's  past            convictions did not  prevent him from continuing to engage in            drug trafficking.  Of relevance  is the fact that he violated            the terms of  his probation which  then was  revoked.    See,                                                                     ___            e.g., United States v. Williams,  753 F.2d 329, 335 (4th Cir.            ___   _____________    ________            1985) (finding evidence that defendants would "continue to be            involved in  narcotics if released  on bail" based  upon fact            that they  had done so despite presence  of prior convictions            and parole supervision);  United States v. Dominquez,  629 F.                                      _____________    _________            Supp. 701 (N.D. Ind. 1986) (detention on grounds of danger to            community ordered where defendant drug suppliers continued to            engage  in  drug-related  activities  even  after  government            intervention).                       Appellant's evidence  did not  significantly negate            the  risk of danger  established by the  government.  Indeed,            most of his evidence did not relate directly to the issue  of            the  "safety  of community."    Rather, the  evidence  of the            number of persons  willing to aid appellant  in securing bail            related  to  his  community  ties  and  the  risk  of  flight            question.   As Congress has  pointed out, community ties have            no  correlation  with  the  question  of  the safety  of  the            community.  See S. Rep. at 24, reprinted in 1984 U.S.C.C.A.N.                        ___                ____________            at 3207.                      In   addition,   the    evidence   concerning   the            undisclosed  financial assets belonging  to appellant and his                                          6            apparent  access  to  large  amounts  of  cash  supports  the            district  court's finding that  appellant presents a  risk of            flight.  Indeed,  appellant has a  passport and the  apparent            wherewithal  to   obtain  false  identification.     Finally,            appellant  appears to belong to a large narcotics trafficking            organization;  further,  he is  not just  a "mule."   Compare                                                                  _______            United  States v. Palmer-Contreras,  835 F.2d at  18 (despite            ______________    ________________            the fact that defendants were only mules, detention proper on            risk  of   flight  grounds   where  organization   for  which            defendants  worked  appeared  to have  significant  financial            resources to assist flight).                      In  conclusion,  the  seriousness  of  the  charges            against  appellant, the stiff sentence he faces if convicted,            the nature  and size of  the criminal enterprise to  which he            allegedly  belongs, his apparent  access to large  amounts of            cash  and the  fact  that  he continued  to  engage in  drug-            trafficking  after three  state  drug  convictions provide  a            solid foundation on which to base a detention order.                        The order of the district court is affirmed.                         The motion to dispense with oral argument is denied            as moot.                                          7
