
USCA1 Opinion

	




          August 18, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1743                                     UNITED STATES,                                      Appellee,                                          v.                               ROBERTO GOMEZ-SANTIAGO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Edwin Quinones and Frank D. Inserni on brief for appellant.            ______________     ________________            Juan A. Pedrosa, Acting United States Attorney,  Edwin O. Vazquez,            _______________                                  ________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, Criminal Division, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Robert Gomez  Santiago (Gomez) appeals                      __________            an  order by  the  district  court  denying  him  bail.    We            affirm.1                      Gomez was arrested pursuant to a criminal complaint            charging him with aiding and  abetting others to possess with            intent to distribute approximately  800 kilograms of cocaine.            The  government moved that he be detained without bail, and a            detention hearing was held.   At the hearing, the  government            presented the  criminal complaint, an affidavit  by a witness            to conversations implicating  Gomez in a  plan to import  and            distribute  cocaine,  and  certain  documents   (not  further            described at the  hearing) to show probable  cause to believe            that  Gomez had  committed  the  offense  with which  he  was            charged.                      The government also  said that  it had  information            that,  on  a  previous  occasion  several  weeks  before  the            activity with  which  he was  charged, Gomez  had stored  and            guarded  a similarly-sized  shipment  of cocaine,  indicating            that he was a  major participant in the drug activity, and it            stated  that Gomez would soon be charged with respect to that            activity.    The government  argued  that  Gomez presented  a            danger to the  community and  a risk of  flight; rather  than            being  subject  to the  statutory  minimum  of ten  years  in                                            ____________________            1.  We hereby deny Gomez's  motion for release pending appeal            as moot and grant his request for expedited resolution of his            appeal of the detention order.            prison,  because  of  a  prior  conviction  for  importing  a            substantial  quantity of marijuana  into Puerto  Rico Gomez's            actual minimum sentence would be twenty years in jail.                       Gomez's  attorney  proffered  the information  that            Gomez  owned  two  farms,  which  grew  coffee,  oranges  and            vegetables, and a warehouse in the community of  Yauco, where            he  lived.  Gomez's attorney  also proffered the testimony of            fifteen family  members and  neighbors from Yauco  that Gomez            was hardworking,  responsible, a good father  and provider, a            good  neighbor and a good citizen, and stated that they would            post the bond of  $75,000, which had been recommended  by the            pretrial services probation officer.                       The  magistrate  judge   ordered  Gomez   detained.            Highlighting the government's evidence  about the size of the            shipment in question, the additional shipment of cocaine with            which the government  said it would charge Gomez, and Gomez's            major role as safekeeper of the cocaine pending distribution,            he found  that the  government had  shown  probable cause  to            believe  that  Gomez had  committed  an offense  for  which a            maximum term  of  imprisonment  of  ten  or  more  years  was            prescribed by the Controlled Substances  Act, 21 U.S.C.   801            et seq.2  He  also noted Gomez's prior conviction  for aiding                                            ____________________            2.  Several weeks later  Gomez was indicted on  six counts of            conspiring  to import, possessing  with intent to distribute,            and  importing  approximately  1,336 kilos  of  cocaine  from            Colombia  into the  customs territory  of the  United States,            reflecting the two  shipments of cocaine  referred to by  the                                         -3-            and abetting an  apparently notorious  gang's importation  of            over 2,000  pounds of  marijuana in 1983  which would  double            Gomez's minimum  jail term.   Under these  circumstances, the            magistrate  judge  stated that  he  did not  share  the Yauco            community's  faith that Gomez did not present a danger to the            community; he  also found that any  alternatives to detention            were "illusory" given the scale of operation described by the            government.  Accordingly, the  magistrate judge found that no            condition  or  combination  of  conditions  would  reasonably            assure  the safety of the  community or that  Gomez would not            flee.                        Thereafter,  the  magistrate  judge denied  Gomez's            motion  for   reconsideration.     Responding  to   what  was            apparently   a   new   argument   in   Gomez's   motion   for            reconsideration,  the magistrate  judge  stated that  Gomez's            alleged  diabetes  did  not  justify his  release  since  his            diabetes could be controlled in custody.                       Subsequently,  the  district  court   affirmed  the            magistrate  judge's  decision.    The court  found  that  the            "enormous" amount  of cocaine  involved indicated  that Gomez            was close to the  source of the drugs and  that his increased            minimum sentence  of twenty years due to  his prior marijuana            conviction  supported  the  magistrate judge's  determination                                            ____________________            government  at the  detention  hearing.   The government  has            appended the indictment to its memorandum on appeal.                                           -4-            that  Gomez  posed  a  risk  of  flight  and  danger  to  the            community.  The court also found that the evidence offered by            Gomez  was insufficient  to  rebut the  statutory presumption            against him.                      On this  record, we  have no hesitation  concluding            that  the district  court's  order  affirming the  magistrate            judge's  detention  of Gomez  was  correct.   Although  Gomez            challenges  the  strength  of   the  evidence  on  which  the            magistrate  judge found  probable cause,  his point  has been            rendered  essentially moot  by Gomez's  subsequent indictment            for importing cocaine.  See United States v. Dillon, 938 F.2d                                    _________________    ______            1412,  1416   (1st  Cir.  1991)  (an  indictment  establishes            probable   cause  for   purposes  of   the  section   3142(e)            presumption).                         Nor  do we  think that  the affidavits  and letters            that  Gomez has submitted to  us are sufficient  to rebut the            section 3142(e)  presumption that  there is "no  condition or            combination  of  conditions  [that]  will  reasonably  assure            [Gomez's] appearance . .  . and the safety of the community .            . .  ."3  For the most part, the affidavits of Gomez's fellow            citizens  are  conclusory  and thus  essentially  useless  in            rebutting the presumption.  For example, the affidavit of the                                            ____________________            3.  We hereby  grant Gomez's motions to  submit an additional            affidavit and  additional documents in support  of his motion            for  release pending appeal and  in support of  his appeal of            the district court's detention order.                                          -5-            mayor  of  Yauco   states  that  he   has  known  Gomez   for            approximately eighteen  years  and "[t]hat  [Gomez] does  not            represent any risk  to the  community [and] is  not a  person            that    could   escape   or   abandon   the   United   States            jurisdiction."4                       Gomez's remaining allegations  are meritless.  Both            the  magistrate  judge  and  the  district  court  adequately            considered the factors described in 18 U.S.C.   3142(g).  The            order of the district court is affirmed.                                           ________                                            ____________________            4.  Since Gomez  has presented no evidence  that his diabetes            could not  be controlled  in custody, we  agree that  Gomez's            alleged diabetes is not a consideration favoring release.                                         -6-
