
USCA1 Opinion

	




          April 22, 1992        [NOT FOR PUBLICATION]                                 ___________________          No. 92-1068                                                UNITED STATES,                                      Appellee,                                          v.                               VINCENT "MICKEY" HURLEY,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                                           and Selya, Circuit Judges.                                           ______________                                 ___________________               Frederick G. Cass, on brief for appellant.               _________________               Lincoln C.  Almond, United States Attorney,  James H. Leavey               __________________                           _______________          and  Margaret E.  Curran, Assistant  United States  Attorneys, on               ___________________          brief for appellee.                                  __________________                                 __________________                  Per Curiam.  A 152-count indictment returned in November                 __________            1991  charges  thirteen  persons  with  various  offenses  in            connection  with  an  alleged international  money-laundering            scheme.  Vincent  Hurley, one of  the named defendants,  here            appeals from a district court order under 18 U.S.C.   3142(e)            directing  that he be detained  pending trial due  to risk of            flight.  We find that the government has sustained its burden            of  establishing by a  preponderance of the  evidence that no            conditions  of   release  will  reasonably   assure  Hurley's            appearance at trial.  We therefore affirm.                 The  indictment, returned in Rhode Island federal court,            charges Hurley with one count of RICO conspiracy, 18 U.S.C.              1962(d), four counts of  failure to file Currency Transaction            Reports,  31 U.S.C.    5324(1),  three counts  of structuring            violations,  id.    5324(3),  and two  counts  of Travel  Act                         ___            offenses, 18 U.S.C.    1952(a)(3).   On December  2, 1991,  a            magistrate-judge  (magistrate) held  a detention  hearing and            ordered that  Hurley be detained  because of risk  of flight.            Three weeks later, the magistrate granted Hurley's motion for            reconsideration  and  ordered  his  release  under  stringent            conditions, including  full surety of $400,000  and a nightly            curfew.   The  district court,  in turn,  reimposed detention            following  a de novo hearing  on December 30,  1991, and this                         _______                                         -2-            appeal ensued.1   We undertake an  independent review of  the            detention  order,  tempered  by  deference  to  the  district            court's  determinations,  particularly its  factual findings.            See, e.g., United States v. Patriarca, 948 F.2d 789, 791 (1st            ___  ____  _____________    _________            Cir. 1991);  United States v.  Tortora, 922 F.2d  880, 882-83                         _____________     _______            (1st Cir. 1990).                 The evidence  below2 showed that Hurley  was involved in            an  organization  which  laundered  hundreds of  millions  of            dollars  of drug  proceeds for  Colombian drug cartels.   The            organization,  which  was   headed  by  codefendant   Stephen            Saccoccia,  functioned  on  a  commission basis;  it  had  no            involvement  in the  underlying  drug activity  itself.   The            scheme operated, in the  main, as follows.  Large  volumes of            cash would be delivered  by courier to Saccoccia in  New York            City. In accordance with faxed instructions, much of the cash            would  then be shipped, by armored car or private vehicle, to            either of two companies owned by Saccoccia in Cranston, Rhode            Island:  Trend  Precious Metals  (Trend)  and Saccoccia  Coin                                            ____________________            1.  David  Izzi,   one  of  Hurley's  codefendants,  filed  a            companion  appeal from  a similar  detention order  but later            opted for voluntary dismissal.   Consideration of the instant            appeal has been delayed in part by the fact that Hurley first            requested  leave  to  file  a  supplemental  brief  and  then            withdrew that request.              2.  No testimony  was heard; both sides  relied on affidavits            and  oral  proffers.    The  affidavits  consisted  of  those            submitted by government agents  in support of search warrants            and orders  for electronic surveillance,  and those submitted            by friends and relatives of Hurley.                                         -3-            Company.    These  two  companies  together  constituted  the            headquarters for the Rhode Island branch of the organization.            In 1990 and early 1991,  such shipments occurred almost daily            and would typically contain  hundreds of thousands of dollars            in  small denominations.   Once  in Rhode  Island, the  money            would be counted on an automatic counting machine and sorted.            Pursuant to Saccoccia's instructions,  it would then be taken            to area banks and used  to purchase cashier's or  treasurer's            checks.   These transactions  were frequently "structured" so            that the amounts were less than $10,000--a device designed to            avoid  the filing of a Currency Transaction Report.  On other            occasions,  when the  purchases  exceeded  that  amount,  the            defendants  caused false reports (or no reports at all) to be            filed.  The checks were made  payable to Trend or other dummy            companies  controlled   by  Saccoccia--businesses  ostensibly            engaged  in  such trades  as gold  or  jewelry that  would be            expected to generate large quantities  of cash.3  The  checks            would  be deposited  in  those companies'  accounts, and  the            funds later  transferred to  a central account  maintained by            Trend at a Providence bank.  The evidence shows that, between            January 1990 and  April 1991, over $30  million was deposited            into  this  clearinghouse account  in  such a  manner.   From                                            ____________________            3.  In March and  April 1990,  portions of the  cash used  to            purchase checks were segregated  at random and dog-tested for            controlled substances.  Each such test resulted in a positive            alert.                                         -4-            there,  the money would be wired to bank accounts in Colombia            and elsewhere.4                   The indictment  charges, and the  district court  found,            that  Hurley  helped to  supervise  the organization's  Rhode            Island operations through his base at Saccoccia Coin Company-            -communicating  frequently  with Saccoccia,  participating in            the  receipt of  cash, and  overseeing its  deposit  into the            various  bank  accounts.   In  addition,  there was  evidence            showing  the following.    Hurley (who  is  described in  one            affidavit  as  Saccoccia's  brother-in-law)  was  present  on            several  occasions  with  him  in  New  York  when  cash  was            delivered.  A  search of Hurley's residence  found $67,000 in            cash,  numerous   ounces  of  gold,  and   several  firearms,            including  a .44  magnum pistol.   Intercepted  conversations            revealed that Hurley, along with  other defendants, routinely            used code  words designed  to make  references to cash  sound            like discussions  of  precious metals.5   He  and the  others            repeatedly  spoke  of security  measures,  such as  obtaining                                            ____________________            4.  Saccoccia also  wired large sums  of money  to the  Trend            account from Los  Angeles and  New York.   In total,  between            January 1990  and April 1991, approximately  $137 million was            laundered through this central account. On April 2, 1991, the            Providence bank closed Trend's  account, and Saccoccia set up            a new clearinghouse account in Los Angeles.             5.  For   example,  "ounces"  meant   thousands  of  dollars.            "Karat"  referred  to  the  denomination  of currency:  e.g.,                                                                    ____            twenty karat  meant twenty dollars.   "High  grade" and  "low            grade"  referred  to  high  and  low  denomination  currency,            respectively.                                         -5-            cellular  telephones  in  the  belief  that  they  were  less            vulnerable to  wiretapping.   According  to the  government's            proffers, Hurley was overheard  on November 26, 1990 agreeing            to "fence" $132,000 in gold that had been stolen in  an armed            robbery earlier that  day.   He was overheard  a month  later            stating,  "We're not coin dealers; we're fences."  And he was            overheard threatening  to "get"  an IRS  agent if that  agent            bothered his mother or father.6                 On   his  own  behalf,   Hurley  presented  evidence  of            substantial ties to the community.   He is 34-year-old native            and life-long  resident of  Rhode Island who  has resided  in            Cranston  for the  past two  years.   He has  a four-year-old            daughter, for  whom he pays monthly child  support, and lives            with his  girlfriend, to  whom he is  contemplating marriage.            His  parents also live in  Cranston; his father  is a double-            amputee  Korean  War veteran.    In addition,  Hurley  has no            criminal  record.    He claims  to  be  indigent.   While  he            apparently owns no real  estate himself, his parents and  two            sisters have all  agreed to  post their  houses as  security.                                            ____________________            6.  The district  court  downplayed the  seriousness of  this            threat and did not base the detention order on the  ground of            dangerousness.   The government  has not argued  in favor  of            detaining Hurley on this basis, either below or on appeal.                                            -6-            And  he states  that,  if released  on  bail, he  could  find            employment as a trailer salesperson or apprentice plumber.7                   We agree  with the district  court that, notwithstanding            these  "admittedly significant"  factors, the  government has            sustained its  burden of  proving by  a preponderance  of the            evidence  that  no  conditions of  release  would  reasonably            assure  Hurley's  appearance  at  trial.    Even  substantial            community  ties  can be  outweighed by  strong countervailing            evidence  of risk  of flight.   See,  e.g., United  States v.                                            ___   ____  ______________            Palmer-Contreras, 835  F.2d 15 (1st Cir.  1987) (per curiam).            ________________            We  think such evidence exists here.  Hurley concedes that he            faces a  potential prison  term in  excess of  fifteen years.            Based  on  the present  record,  the  evidence against  him--            consisting largely of intercepted  oral communications--would            appear  to be  strong.   Together,  these  factors provide  a            considerable incentive to flee.   And from the nature  of the            organization  and  Hurley's  role  in it,  the  inference  is            compelling  that  he  likely  has  access  to  the  financial            resources and international contacts  that would provide  him            with the means to flee  and thereafter to absorb the cost  of            any security that is forfeited by relatives or friends.  I  n                                            ____________________            7.  Hurley also  proffers (1) that  the weapons found  in his            home (including  the .44 magnum)  were used for  hunting, (2)            that he brought  the cash  and gold home  from the  Saccoccia            Coin Company  because the  security system had  recently been            tampered  with, and (3)  that the "we're  fences" comment was            nothing more than sarcasm.                                         -7-            addressing  this latter  consideration,  the  district  court            deemed  relevant--at  least  by   analogy--the  congressional            findings giving rise to  the rebuttable presumption of flight            created by 18 U.S.C.    3142(e) as to major  drug offenders.8            Hurley  on appeal claims that  such reliance was  error.  Yet            the  district court did not purport  to apply the presumption            itself (recognizing that Hurley had not been charged with any            offense to which it  applies).  Rather, it simply  noted that            the  same  policy  considerations  underlying  the  statutory            presumption  were  applicable here.    As  another court  has            explained:                 "[M]oney  laundering" is  an integral  part  of the                 narcotics business.  The same factors  which create                 an  unusually  high  risk of  flight  in  narcotics                 offenses and which form the basis for the statutory                 presumption  are  present  here--the   business  is                 extremely   lucrative   and  those   involved  have                 established  substantial  ties  outside the  United                 States.      Thus,   persons   involved   in  money                 laundering,  just  as those  involved  in narcotics                 trafficking,   have   the  resources   and  foreign                 contacts  to escape  to  other countries  to  avoid                 prosecution.            United States v. Botero,  604 F. Supp. 1028, 1033  (S.D. Fla.            _____________    ______            1985), aff'd mem.  853 F.2d 928 (11th Cir. 1988).   Whether a                   __________                                            ____________________            8.  See, e.g.,  United States  v. Jessup,  757 F.2d  378, 384                ___  ____   _____________     ______            (1st Cir. 1985) ("After  hearing evidence, Congress concluded            that 'flight to avoid  prosecution is particularly high among            persons  charged with  major drug  offenses.'  It  found that            'drug  traffickers often  have established  ties  outside the            United States ... [and]  have both the resources  and foreign            contacts  to escape  to other  countries ....'")  (quoting S.            Rep. No. 225, 98th  Cong., 1st Sess. 20 (1983),  reprinted in            1984 U.S.C.C.A.N. 3203) (citation omitted).                                         -8-            person accused of  money laundering can  be presumed, in  the            absence of  any direct  evidence thereof, to  have access  to            such "resources and  foreign contacts" is a  question we need            not decide.  For that is not what occurred here.  Rather, the            organization's close links to  Colombian drug cartels and the            ready  availability   of  large   sums  of  cash   were  both            established by direct evidence--evidence which Hurley has not            attempted to dispute.                     Hurley also  contends that  the district court  erred in            finding   that  he   played   a  supervisory   role  in   the            organization's Cranston, Rhode  Island operations.   Based on            the  evidence presented, we agree that he was not the ranking            person in the local hierarchy; that role appears to have been            filled  by  codefendant David  Izzi.   It  is also  true that            Hurley appears not to  have conducted any of the  actual bank            transactions himself.9  We are not persuaded, however, by his            argument that his rank in the organization was no higher than            that of other defendants who have been released on bail.   To            the contrary, as the government argued and the district court            implicitly  found, Hurley  appears  to  have been  second-in-            command in Rhode  Island.  Among other  evidence, his nearly-            daily  conversations  with  Saccoccia  (and   Izzi)  and  his                                            ____________________            9.  Exhibit  A  to the  indictment  lists  hundreds of  check            purchases   and,  in  each   instance,  identifies  both  the            individual  conducting  the   transaction  and  the  business            designated  as  "payee."   Hurley's  name,  and  that of  the            Saccoccia Coin Company, do not appear in this listing.                                           -9-            occasional  visits  with  Saccoccia  in New  York  warrant  a            finding that  he  played a  supervisory  role--receiving  and            implementing instructions  from Saccoccia and  overseeing the            receipt  and  subsequent disposition  of  the drug  proceeds.            Given the  organization's access to  large sums of  money and            foreign  contacts,  a substantial  risk  of  flight might  be            deemed  present even  with respect  to someone  lower  in the            hierarchy.  Cf. United States v. Dillon, 938 F.2d 1412, 1416-                        ___ _____________    ______            17  (1st Cir.  1991)  (per curiam)  (applying presumption  to            uphold  pretrial detention  of  individual with  strong local            ties who  participated  only  marginally  in  attempted  drug            purchase); Palmer-Contreras, 835 F.2d at 18 (same; defendants                       ________________            served as  "mules" in  drug  importation scheme).   Here,  in            light of Hurley's supervisory  position and the other factors            recited above, we  think the  district court's  determination            was well warranted.                 Finally, Hurley advances a pair of arguments challenging            the  constitutionality of  his detention  on the  ground that            pretrial proceedings are  likely to  be protracted.   We  are            told  that Saccoccia and his  wife (who is  also a defendant)            were arrested  in Switzerland  and are  fighting extradition;            trial must await resolution of that matter.  Furthermore, the            government's evidence  in this case includes  over 1600 hours            of tape  recordings and over  5000 pages of  handwritten logs            summarizing  the  contents  thereof,  all of  which  must  be                                         -10-            scrutinized by the defendants.  Hurley  first argues that, in            light  of  these  circumstances,  his  pretrial detention  is            likely to be so extended as to violate due process, such that            he should now be released.  We rejected an identical argument            in Tortora:                _______                 At  this   stage  of  the   proceedings,  Tortora's                 pretrial  incarceration has not  been so protracted                 as to  support a  due process  claim.  Because  the                 duration   of   further    immurement   is    still                 speculative,    consideration    of   whether    an                 appreciably   longer  incarcerative   period  would                 constitute   a   violation  of   constitutional  or                 statutory  law  in  Tortora's  case   is  presently                 unripe.              922  F.2d at 889  (citations and footnote  omitted).  Tortora            had been held  "for more than half a year,"  id., at the time                                                         ___            of that decision--longer than  Hurley has been detained here.            Hurley attempts  to distinguish  Tortora on the  ground that,                                             _______            whereas he  is being held due to  risk of flight, Tortora was            held  because of dangerousness.  Yet he fails to explain, and            we fail to see, how this distinction makes any difference for            purposes of a due process analysis.                 Hurley's second argument is that his continued detention            will prevent him from  reviewing the tapes and logs  with his            counsel, thereby violating  the Sixth Amendment.   As a basis            for revoking the order of detention, this argument falls well            short.   Hurley, however, has a  right to listen to the tapes            and  review the  logs in the  company of his  attorney.  See,                                                                     ___            e.g.,  Dillon, 938 F.2d at 1417 (noting that appellant was to            ____   ______                                         -11-            be    afforded    "reasonable   opportunity"    for   private            consultations  with his attorney).   If suitable arrangements            cannot be made  at the institution where  Hurley is currently            detained,  it may well be  desirable for the  parties and the            district  court  to  work  together  to  fashion  some  other            alternative.  See 18 U.S.C.   3142(i) ("The  judicial officer                          ___            may, by subsequent order, permit the temporary release of the            person,  in the custody of a United States marshal or another            appropriate person,  to the extent that  the judicial officer            determines such  release to  be necessary for  preparation of            the  person's defense or for another compelling reason.")  We            need  not,  however,  address  the  matter  further  at  this            juncture, as no particular issue in this regard is before us.                 The order of detention is affirmed.                 ___________________________________                                         -12-
