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[NOT FOR PUBLICATION]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
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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.
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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.
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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.
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