
USCA1 Opinion

	




          March 14, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1118                                    UNITED STATES,                                      Appellee,                                          v.                               CHARLES R. ROGERS, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                  [Hon. Francis J. Boyle, Chief U.S. District Judge]                                          _________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            David N. Cicilline on brief for appellant.            __________________            Sheldon  Whitehouse,  United  States  Attorney,  and  Lawrence  D.            ___________________                                   ____________        Gaynor, Assistant United States Attorney, on brief for appellee.        ______                                 ____________________                                 ____________________                 Per Curiam.   This is  an appeal  from the  denial of  a                 __________            motion to revoke an order of pretrial detention.  On December            14,  1994,   defendant/appellant  Charles  Rogers,   Jr.  and            codefendants Ruben DeLeon, David Scialo, and Andrew J. Beagan            were charged  in a two-count indictment  with: (1) conspiring            to distribute and possess with intent to distribute more than            five  kilograms   of  cocaine  in  violation   of  21  U.S.C.              841(a)(1)  and  846, and  (2)  attempting  to possess  with            intent  to  distribute  said  cocaine  in  violation  of  the            aforementioned  statutes  and  18   U.S.C.   2.    After  the            defendants were arraigned and a detention hearing was held on            December 16,  1994, a magistrate  judge ordered that  all the            defendants be  detained pending  trial.   Rogers subsequently            filed a motion to revoke that detention order.1                   The  district   court  heard  evidence,   proffers,  and            arguments on this motion on December 20 and 22, 1994.  At the            conclusion of  the proceedings  the district judge  issued an            oral  ruling  that  denied   Rogers'  motion  to  revoke  the            detention order on  the ground  that Rogers posed  a risk  of            flight.  Five days  later the magistrate judge issued  a form            pretrial detention order which  noted, inter alia, that clear                                                   _____ ____            and   convincing   evidence  had   established   that  Rogers                                            ____________________            1.  While  the   magistrate  judge   ordered  that  all   the            defendants  be detained  at the  conclusion of  the detention            hearing  on December  16, 1994,  he did  not issue  a written            order at that time.  The transcript of the proceedings before            the magistrate judge is not before us.                                         -3-            participated in  a conspiracy to distribute  cocaine, that he            faced  at least 10 years' imprisonment if convicted, and that            he had not  rebutted the presumption that he posed  a risk of            flight or danger to the community under 18 U.S.C.   3142(e).2            On  January  17, 1995,  the  district  court entered  a  one-            sentence  order   denying  Rogers'   motion  to   revoke  the            magistrate judge's  detention order.   This  appeal followed.            For the reasons set out below, we affirm.                                    I. BACKGROUND                                    _____________                 The record  discloses that the  defendants were arrested            following  a "sting" arranged by agents of the Federal Bureau            of   Investigation   (FBI)    and   the   Providence   Police            Department.3   On  November 16,  1994, undercover  Providence                                            ____________________            2.  18  U.S.C.   3142(e)  governs  detention   of  defendants            pending  trial.   The  statute provides,  in pertinent  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 events that  lead to Rogers'  arrest are detailed  in            the "Alternative Findings" appended to the magistrate judge's            detention order.   As the district judge  left these findings            undisturbed in denying Rogers'  motion to revoke, we  rely on            these findings  and the government's proffer  at the district            court's 12/20/94  hearing in  describing the evidence  of the            underlying offense.                                          -4-            Police Detective  Fred Rocha  met defendant Andrew  Beagan in            Providence.   Beagan  indicated  that he  wanted to  purchase            cocaine.  Rocha agreed to sell Beagan 25 kilograms of cocaine            at a price  of $13,500 per  kilogram.  Rocha  told Beagan  he            would get the cocaine around the end of the month.                 On December 8, 1994,  Rocha told Beagan that he  had the            cocaine.  They agreed that Rocha would be paid in large bills            and  that the transaction  would occur on  December 12, 1994.            They further agreed that the transaction would be done in two            stages.   First, Beagan and Rocha would meet and Beagan would            show Rocha the money.  Rocha  would then call the people that            Beagan was  working for by  cellular telephone and  tell them            where they could retrieve the cocaine.  Beagan's people would            then drive to  the site  of the cocaine  and, upon  verifying            that the drug was there, call Beagan and tell him  to release            the money to Rocha.                 At approximately  10:30 a.m. on December  12th Rocha met            Beagan to finalize the plans for the trade.  They agreed that            the  transaction would  take place  at about  4:00 p.m.   Ten            kilograms would  be delivered  first, and if  Beagan's people            were satisfied with the drug's quality, the remaining fifteen            kilograms  would be  exchanged within an  hour.   Beagan told            Rocha that he had a rental  car that he wanted to use  as the            "drop car"  for the cocaine.  Rocha agreed.  Around 1:30 p.m.            Rocha  had a telephone conversation  with Beagan.  Rocha told                                         -5-            Beagan  to bring  the  "drop  car"  to  the  parking  lot  at            University Heights in Providence.  Beagan agreed and informed            Rocha that the "drop car" was  a white Taurus with plate #VU-            690.   Rocha told  Beagan  to leave  the keys  in the  visor.            Shortly thereafter Rocha and another undercover officer found            the Taurus in the University Heights parking lot.  The Taurus            was driven  to another  location where  its trunk was  loaded            with  a mixture of  cereal and  plaster designed  to resemble            cocaine.   The  Taurus was  then parked  in a  lot next  to a            baseball field on Gano  Street in Providence.  The  agent who            left it there put its keys on the visor.                 At  approximately 3:45  p.m. Detective  Rocha telephoned            Beagan from a hotel  parking lot in Providence.   They agreed            that  Beagan  would meet  him there  with  the money  for the            cocaine.  Rocha told Beagan to tell the person who  was going            to  pick up  the cocaine  to wait  at another  restaurant for            instructions.   Beagan arrived  approximately fifteen minutes            later with  codefendant DeLeon.  DeLeon exited his vehicle (a            Geo)  and entered  Rocha's vehicle  with a  leather bag.   He            opened  the  bag and  showed Rocha  bundles  of five  and ten            thousand dollars.4  DeLeon then returned to his Geo and Rocha            began to give Beagan directions to the Taurus.  At that point            Beagan got  a telephone call  on the cellular  telephone that                                            ____________________            4.    It   was  later  determined  that   the  bag  contained            $145,000.00.                                         -6-            was in the Geo.  Beagan then asked Rocha to direct the person            on the other end  of the line to the Taurus.   Rocha spoke on            Beagan's cellular telephone and told  the person on the other            end  of  the  line   to  enter  the  parking  lot   near  the            intersection  of Power  and Gano  Streets.5   Rocha then  sat            waiting  in his  car  with DeLeon.    Minutes later  FBI  and            Providence Police  agents saw  a Toyota with  three occupants            enter the parking lot where the Taurus had been planted.  The            Toyota drove up to the Taurus.  Defendant David Scialo exited            the Toyota and entered  the Taurus, taking its keys  from the            visor.   The Toyota and  the Taurus were  then driven towards            Gano  Street.   As  these vehicles  were departing  defendant            Rogers  was seen  driving the Toyota  and holding  a cellular            telephone to his ear.   The agents then stopped  the vehicles            and  arrested Rogers,  Scialo,  and Juan  Toribio (the  third            occupant of the  Toyota).6  Beagan  and DeLeon were  arrested            at the hotel where they had met Rocha.  Further investigation            later disclosed  that defendant Scialo had  rented the Taurus            that had been  used as  the "drop car"  on December 2,  1994.            Rogers was listed as a second driver on the rental agreement.                 At  the district  court's hearing  on Rogers'  motion to            revoke the  detention order Rogers presented  evidence of his                                            ____________________            5.  The government proffered that the person on the other end            of  the line was referred to as "Chuck", asserting that Rocha            spoke to the defendant, Charles Rogers.            6.  The government elected not to prosecute Toribio.                                         -7-            strong family and community ties.  Thus, the record discloses            that  Rogers  is thirty  years old  and  has been  a lifelong            resident  of Rhode Island.  While Rogers never married, he is            the father of a  ten-year old daughter.  Rogers'  uncle, Gary            Saucier, testified that Rogers has  a "very loving and caring            relationship" with his daughter.  Saucier was willing to post            his residence as security  and to supervise Rogers if  he was            released.7   Defense counsel  also proffered that  Rogers had            no prior convictions although  certain state charges that had            been  pending   against  Rogers  had   been  dismissed   that            morning.8   Defense  counsel  maintained  that  the  evidence            against  Rogers was  weak  because the  government had  shown            simply  that  Rogers  had    dropped  off  another  defendant            (Scialo)  and immediately  departed, it  had not  adduced any            evidence that  Rogers  had  any  knowledge of  a  drug  deal.            Defense  counsel  argued that  given  the weak  state  of the            evidence,  the   absence   of  prior   convictions,   Rogers'            significant  family  ties  and  lack of  resources  to  flee,            pretrial release with conditions was justified.                                             ____________________            7.  Rogers  offered  to  submit  to  numerous  conditions  if            released,  including third-party  custody  with his  aunt and            uncle and electronic monitoring.   He also offered to  post a            surety bond secured by his uncle's real estate.              8.  The  state  charges  included  conspiracy  to  violate  a            controlled   substances  act,   possession  with   intent  to            distribute marijuana, delivery of  over one ounce of cocaine,            possession with intent to  distribute cocaine, and a firearms            offense.                                          -8-                 In contrast, the prosecutor argued that the case against            Rogers  was strong,  stressing that  the evidence  would show            that Rogers was  the person that agent Rocha spoke  to on the            cellular telephone when he gave directions to the Taurus  and            that  Rogers was seen holding a cellular telephone to his ear            as  he  drove the  Toyota away  from  the pick-up  site (thus            suggesting that Rogers had  been communicating with the other            alleged conspirators by cellular telephone).   The government            also  submitted a pretrial  services report  that recommended            that  Rogers be  detained  pending trial  because his  record            raised  concerns about  his reliability  to appear  in court.            The report indicated that  Rogers had violated the conditions            of his release on the aforementioned state drug charges since            he  had  not   reported  to  the  Rhode   Island  State  Bail            Information/Supervision  Unit  (the "bail  supervision unit")            since  July 1994.  The report further indicated that the bail            supervision unit  sent Rogers  three separate notices  of his            violation  and  that  he had  not  responded  to  any of  the            notices.9    The  pretrial  services  report  concluded  that                                            ____________________            9.  The notices  were sent  to Rogers on  September 1,  1994,            November  16, 1994,  and December  13, 1994.   The  first two            notices  were   sent  to  Rogers  at   361  Williams  Street,            Providence, the address that Rogers reported as his residence            for  the past  18-24 months  when he  was interviewed  by the            federal  probation officer  on December  13, 1994.   The last            notice was sent to  a previous address that Rogers  had given            to the state bail supervision unit.  Each notice stated:                 As part of your bail conditions, you are to be                 in contact with the Bail Information Unit office.                                         -9-            Rogers had  demonstrated an unwillingness to  comply with the            state court's bail release conditions.10                 The district judge indicated that the information in the            pretrial   services  report  concerning  Rogers'  failure  to            respond to the bail  supervision unit's notices was important            evidence  that weighed  against  pretrial  release.   Defense            counsel maintained that  Rogers had never received any of the            notices due  to a miscommunication occasioned  by the closing            of Rhode  Island's bail supervision unit.  The court recessed            the  hearing  to allow  defense  counsel  to investigate  the            matter  further.  When the hearing reconvened on December 22,            1994, defense counsel reported that Rogers had lived at three            different addresses  over the  last two-and-a-half  years and            that his current address was 365 Williams Street (not the 361                                           _                            _            Williams Street address that Rogers had given to  the federal            probation  officer  and  the  Rhode  Island bail  supervision            unit).  Defense counsel maintained that Rogers simply did not            receive the notices, that  he otherwise had a good  record of                                            ____________________                 Since we have not heard from you, you may be in                 violation of your bail conditions.                 Please call us immediately at 277-3827.  If we do                 not hear from you a warrant will be issued for your                 arrest.                              10.  The  report  also  indicated  that  although Rogers  had            formerly worked  for his  father's plumbing business,  he had            been  unemployed for  approximately nine  months when  he was            arrested on the instant federal charges.                                         -10-            complying with  the requirements of his  state probation, and            that Rogers was an excellent candidate for pretrial release.                 At the  conclusion of the  hearing on December  22, 1994            the  district judge  announced that  there was  evidence that            Rogers was involved in the purchase of approximately $140,000            worth of cocaine, that the procedures used to  accomplish the            exchange  were  professional  in   nature,  and  that  Rogers            participated  in picking up  the cocaine.   The judge further            noted that Rogers was subject to a mandatory 10-year sentence            if convicted  and that it  was not likely  to have been  just            happenstance that  Rogers was  driving the Toyota  from which            the pick-up man alighted.   The judge specifically found that            Rogers  was given notice that  a warrant would  issue for his            arrest if he  did not  report to the  state bail  supervision            unit.  While  Rogers claimed  that he did  not receive  these            notices, the district judge found that either was not true or            Rogers was not  living at  the address  he had  given to  the            probation department.11   The  judge  denied Rogers'  motion,            indicating that, "there is the possibility of flight here."                                                             ____________________            11.  We note that it appears to be undisputed that Rogers did            not  receive  the  third,  12/13/94,  notice  from  the  bail            supervision unit  as he  was arrested  and  detained for  the            federal offenses  on December 12,  1994.  However,  the first            two notices were  sent to  361 Williams  Street, the  address            which  Rogers had identified as  his.  It  is also undisputed            that Rogers'  father and  step-mother reside at  361 Williams            Street.                                           -11-                                    II. DISCUSSION                                    ______________                 On appeal, Rogers argues  that the district judge placed            too  much   emphasis  on  the   pretrial  services   report's            information concerning  his failure  to respond to  the Rhode            Island bail  supervision unit's  notices.  He  reiterates his            contention  that the  case  against him  is weak  because the            government offered no evidence that he knowingly participated            in a plan  to purchase  cocaine.  Rogers  maintains that  his            strong  community  ties  and other  personal  characteristics            establish that he does not pose a risk of flight or danger to            the community.                 We afford  a pretrial detention order independent review            with  deference to  the findings of  the district  court. See                                                                      ___            United  States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).            ______  ______    _______            This  is "an  intermediate level  of scrutiny,  more rigorous            than the  abuse of  discretion or clear-error  standards, but            stopping  short of de novo or plenary review."  United States                               __ ____                      _____________            v. Tortora, 942 F.2d 880, 883 (1st Cir. 1990).  We  determine               _______            whether "due attention was given to all the statutory factors            [governing pretrial release under 18 U.S.C.  3142(g) and] ...            shall  give  such   deference  as  we  think   the  care  and            consideration   manifested  by  the  magistrate  [judge]  and                                         -12-            district court  warrant." United States v.  O'Brien, 895 F.2d                                      _____________     _______            at 816.12                    Having  reviewed the  record  thoroughly, we  decline to            disturb  the  district  court's  ruling.13    The  indictment            established  probable   cause  to  believe  that  Rogers  had            violated the Controlled Substances  Act and was punishable by            a maximum of  at least  10 years' imprisonment.   See,  e.g.,                                                              ___   ____            United States v. Vargas,  804 F.2d 157, 163 (1st  Cir. 1986).            _____________    ______            Thus,  under  18  U.S.C.   3142(e), the  district  court  was            required  to presume  that  no condition(s)  would reasonably                                            ____________________            12.  Under  18 U.S.C.   3142(g), district  courts determining            whether  pretrial  release is  warranted  must  consider such            factors as the nature  of the offense charged, the  weight of            the evidence against the defendant, the  defendant's personal            history and characteristics (including the defendant's family            and community ties, employment, financial resources, criminal            history,  and  record  of  court  appearances),  whether  the            defendant was on probation or other release pending  trial at            the time  of his arrest,  and the nature  of any  danger that            would be posed by the defendant's release.            13.  We  note  that  the  district  judge  only  issued  oral            findings  and did  not  reduce  his  decision to  writing  as            required by  18 U.S.C.  3142(i)("In a  detention order issued            pursuant to ... subsection (e),  the judicial officer shall -            (1) include written findings of fact  and a written statement            of the reasons  for the detention;...").  In the past we have            regarded  this  as a  basis for  remand.   See,  e.g., United                                                       ___   ____  ______            States  v. Moss, 887 F.2d  333, 338 (1st Cir. 1989)(remanding            ______     ____            where  detention order  contained  only conclusory  statement            that   defendant  failed   to   rebut   18  U.S.C.    3142(e)            presumption).   However, as of December 1, 1994, Fed. R. App.            P. 9(a)  allows district  courts to,  "state  in writing,  or                                                                       __            orally  on the  record, the  reasons for  an order  regarding            ______________________            [pretrial] release or detention of a  defendant in a criminal            case." (emphasis supplied).  As the district judge stated his            reasons for  detaining Rogers  orally on the  record, we  are            able to conduct the necessary review.                                             -13-            assure  Rogers'  appearance at  trial  or the  safety  of the            community  absent sufficient  rebuttal evidence  from Rogers.            Here, Rogers  submitted evidence that  he had strong  ties to            Rhode   Island,  no   significant  criminal  record,   and  a            willingness  to submit  to  various  conditions  of  release.            While Rogers'  evidence satisfied  his burden  of production,            see,  e.g., United States v.  Jessup, 757 F.2d  378, 384 (1st            ___   ____  _____________     ______            Cir.  1985)(defendant  need only  produce "some  evidence" to            rebut presumption), the presumption did not  simply disappear            upon the presentation of  Rogers' evidence. See, e.g., United                                                        ___  ____  ______            States  v. Perez-Franco, 839  F.2d 867, 870  (1st Cir. 1988).            ______     ____________            Rather,  the  district judge  was  required  to consider  the            congressional  presumption  that  drug traffickers  generally            pose special  risks of  flight along  with the  other factors            outlined  in  18  U.S.C.   3142(g)   in  determining  whether            pretrial detention was warranted. Id.                                              ___                 The  judge's oral  findings  indicate that  he gave  due            consideration  to  the nature  of  the  offense charged,  the            weight of  the evidence against Rogers,  and Rogers' personal            history  and  characteristics  when he  determined  that  the            government had  carried its burden of  persuasion that Rogers            posed a risk of flight.   In particular, the judge found that            the government had demonstrated that Rogers participated in a            professional conspiracy to purchase a large amount of cocaine            that  was  worth a  substantial sum  of  money.   Contrary to                                         -14-            Rogers' contention, we do not agree that the evidence against            Rogers  was weak.   The government proffered  that Rogers was            the  person to whom agent Rocha spoke when he gave directions            to   the  Taurus  that  purportedly  contained  the  cocaine.            Minutes after  Rocha gave  these directions, Rogers  was seen            dropping off defendant Scialo at the pick-up site and holding            a cellular telephone to his ear as he drove away followed  by            the Taurus.  The  fact that Rogers was  seen with a  cellular            telephone, the  mode of  communication that Beagan  and Rocha            agreed  upon  when they  hatched the  scheme to  transfer the            drugs and money at  separate locations, further suggests that            Rogers was in on the deal.  While this evidence is admittedly            circumstantial, "criminals rarely welcome innocent persons as            witnesses to  serious crimes ...."   United States  v. Ortiz,                                                 _____________     _____            966 F.2d  707, 712 (1st Cir. 1992),  cert. denied, 113 S. Ct.                                                 _____ ______            1005  (1993).    Thus,  we  think  that  the  district  judge            reasonably inferred that this combination of events indicated            that Rogers  was a  knowing participant  in  a conspiracy  to            purchase  cocaine.  See United  States  v.  Sanchez, 917 F.2d                                ___ ______________      _______            607,  610 (1st Cir. 1990), cert. denied, 499 U.S. 977 (1991),                                       _____ ______            (conspiracy   may  be   inferred  from   a  development   and            collocation of circumstances).     We  also  reject   Rogers'            contention that the district judge  erred by placing too much            weight  on the  information in  the pretrial  services report            concerning  Rogers' failure  to respond  to the  Rhode Island                                         -15-            bail supervision  unit's notices.  The  record discloses that            two  of  the notices  were sent  to  the address  that Rogers            identified as  his home (i.e.,  361 Williams Street)  when he            was interviewed by the  federal probation officer on December            13,  1994.14    When  Rogers' failure  to  respond  to  these            notices  became  an  issue, defense  counsel  proffered  that            Rogers  resided at  a different  address (i.e.,  365 Williams            Street)  and that he never  received the notices.   But where            Rogers had  reported that his address was 361 Williams Street            only one week earlier,  we think that the district  judge was            justifiably  skeptical  of  Rogers'  claim that  he  did  not            receive the notices  that had  been sent to  that address  in            September  and November  1994.15   Moreover, although  Rogers            proffered  that he lived at 365 Williams Street, there was no            evidence that  he ever gave  the bail  supervision unit  this            address.   Thus, we  think that  the judge's conclusion  that            Rogers  either received  the  state's notices  and failed  to            respond to them, or  failed to report his correct  address to                                            ____________________            14.  An  addendum to  the  pretrial  services report  further            indicates that  Rogers had  given the  same address  to Rhode            Island's bail supervision unit.            15.  The  pretrial  services  report  indicates  that  Rogers            reported that he had resided  with his father and step-mother            at 361 Williams Street for approximately  two years, and that            Rogers'  father corroborated  this assertion.   If  that were            true,  Rogers should have received the notices that were sent            to him in September and November of 1994.                                             -16-            the bail supervision unit,  was reasonable.16  In  any event,            the record indicates  that the district judge had  good cause            to  doubt Rogers'  future compliance  with any  conditions of            release that might be imposed.                  It is true that there was no direct evidence that Rogers            participated in the negotiations  for the purchase of cocaine            between  Rocha and  Beagan.   However, given  the significant            circumstantial  evidence  that  Rogers  participated  in  the            conspiracy, the evidence that  he had violated the conditions            of release with  respect to previous  state charges, and  the            fact that Rogers faces a substantial penalty if convicted, we            agree  with   the  district   court's  conclusion  that   the            presumption  that Rogers  presents a risk  of flight  has not            been  overcome.   This case  is similar  to United  States v.                                                        ______________            Dillon,  938 F.2d  1412,  1416 (1st  Cir.  1991).   There  we            ______            affirmed  the detention of a  defendant who, like Rogers, had            no significant prior convictions  and had not participated in            the negotiations for the purchase of drugs.  Dillon, however,            had appeared with  a substantial sum  of money ($200,000)  at            the time of the illicit  exchange.  Thus, he appeared "to  be            part   of   an   organization  with   significant   financial                                            ____________________            16.  To  be sure,  we recognize  that the state  charges that            lead to  the imposition of these  reporting requirements were            ultimately dismissed in December 1994.  However, the pretrial            services report  indicates that  Rogers stopped  reporting to            the bail supervision unit without justification in July 1994,            five months before the charges were dismissed.                                              -17-            resources[,]"  i.e.,  the  type  of  drug  organization  that            Congress had in mind when it enacted 18 U.S.C.  3142(e).  See                                                                      ___            United States v. Dillon,  938 F.2d at 1416; United  States v.            _____________    ______                     ______________            Jessup, 757  F.2d at 385-86.  While  Rogers was not the money            ______            man,  he  nonetheless  appears   to  be  affiliated  with  an            organization that was able to finance a purchase  of $140,000            worth of  cocaine.    Such an  organization  could  no  doubt            finance  Rogers' flight.   In  short, the  record as  a whole            indicates that Rogers failed to adduce sufficient evidence to            rebut  the  presumption that  he  poses a  risk  of flight.17            Accordingly,  the  district  court's  order  denying  Rogers'            motion to revoke the order of pretrial detention is affirmed.                                                                _________                                                                         ____________________            17.  As the district court supportably rested its decision on            risk of flight  grounds, we  need not consider  the issue  of            dangerousness. Cf. United States v. Jessup, 757 F.2d at 380.                           ___ _____________    ______                                         -18-
