Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1721
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE VALDIVIA,
Defendant, Appellant.
[Hon. Daniel R. Domínguez, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Before
Selya, Lynch and Lipez,
Circuit Judges.
Nicolas Nogueras Cartagena on brief for appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabón,
Assistant United States Attorney, and Nelson Pérez-Sosa, Assistant
United States Attorney, on brief for appellee.
July 22, 2004
Per Curiam. In this bail appeal, defendant José Valdivia
claims that the district court erred in ordering him detained
without bail. "[U]pon careful review of all the facts and the
trial judge's reasons," United States v. O'Brien, 895 F.2d 810, 814
(1st Cir. 1990), "tempered by a degree of deference to the
determinations made below," United States v. Tortura, 922 F.2d 880,
882-83 (1st Cir. 1990), we find no basis to conclude that "a
different result should have been reached." O'Brien, 895 F.2d at
814. Accordingly, we affirm.
Where, as here, there is probable clause to believe that the
defendant committed certain drug offenses carrying a minimum prison
term of ten years or more, Congress has established a rebuttable
presumption "that no condition or combination of conditions will
reasonably assure the appearance of the person as required" if
defendant is released pending trial. 18 U.S.C. § 3142(e),
(f)(1)(C). Congress based that presumption on findings that
"'flight to avoid prosecution is particularly high among persons
charged with major drug offenses'" and that "'drug traffickers
often have established ties outside the United States . . . [and]
have both the resources and foreign contacts to escape to other
countries.'" United States v. Jessup, 757 F.2d 378, 384 (1st Cir.
1985)(quoting S. Rep. No. 225, at 20 (1983), reprinted in 1984
U.S.C.C.A.N. 1, 23).
"[T]o 'rebut' the presumption, the defendant must produce some
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evidence . . . that what is true in general is not true in the
[defendant's] particular case." Jessup, 757 F.2d at 384. But,
even if the defendant produces sufficient evidence to rebut the
presumption, "the magistrate or judge should then still keep in
mind the fact that Congress has found that [drug] offenders, as a
general rule, pose special risks of flight . . . [and] should
incorporate that fact and finding among the other special factors
that Congress has told [judges] to weigh when making . . . bail
decision[s]." Jessup, 757 F.2d at 384. The amount of weight to be
given to the presumption depends on how closely the defendant's
case "resemble[s] the congressional paradigm." Id. at 387.
Regardless of whether the presumption is rebutted, the burden of
proof remains on the government. Id. at 381.
Here, the evidence produced and proffered by Valdivia focused
on his strong family ties, his steady and gainful employment
history, his good reputation in the community, and his relatives'
willingness to take custody of him and help finance his bail. We
need not decide whether that evidence was sufficient to rebut the
presumption, because, as discussed below, the district court's
careful application of the statutory factors to the particular
facts of this case readily withstands scrutiny under the
intermediate standard of review applicable here. See Tortura, 922
F.2d at 883.
In concluding that Valdivia presented a high risk of flight,
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the district court appropriately gave considerable weight to the
presumption and the underlying congressional findings because, as
the judge concluded, "the particular facts surrounding [Valdivia]
precisely fit the Congressional concerns of enhanced flight risk."
In particular, the evidence proffered by the government, that
Valdivia was part of a large organization to import and distribute
60 to 80 kilograms of heroin moved during the three-year time span
of the conspiracy, is sufficient to characterize this offense as
the kind of "major drug offense" that the presumption was designed
to address. As the district court further found, Valdivia was "a
main cog" in that operation: He recruited crew members of cruise
ships or other couriers to carry the drugs into Puerto Rico, he
received the drugs when they arrived, and he coordinated the
further distribution of the drugs to the United States. The
evidence that Valdivia had strong connections at the Puerto Rico
Port Authority, where he worked; at the international airport; and
in foreign countries, including Aruba and Venezuela, where other
members of his drug organization had previously fled, also fit the
congressional paradigm of a "drug trafficker[] [who] ha[s] . . .
established ties outside the United States . . . [and] ha[s] both
the resources and foreign contacts to escape to other countries."
As the district court concluded, "a conspiracy to move sixty to
eighty kilos of heroin undetected through major ports and airports,
evading security, . . . qualifies as [a] major drug operation
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capable of expeditiously moving defendant out of the jurisdiction."
In addition to the presumption itself, the district court also
appropriately relied on the strength of the evidence against
Valdivia. See United States v. Palmer-Contreras, 835 F.2d 15, 18
(1st Cir. 1987) (per curiam) (where "the evidence against
defendant[] is strong, the incentive for relocation is increased").
That evidence included proffered testimony of two cooperating
coconspirators as to Valdivia's role in the operation, a proffered
video recording of Valdivia meeting with two persons who arrive to
collect money from drug activities, and taped telephone
conversations identifying Valdivia as a person having the financial
resources to pay for drug operations and knowing the whereabouts of
a courier and of missing heroin. Based primarily on that strong
evidence of guilt, coupled with the presumption, the district court
correctly concluded that Valdivia presented a high risk of flight.
The evidence also warranted the district court's further
conclusion that the conditions proposed by Valdivia ($8,000 bail
and oversight by his relatives)1 would be insufficient to
"reasonably assure [his] presence" at trial. 18 U.S.C. § 3142(e).
Given the evidence of Valdivia's own financial resources and his
membership in a large drug organization, the court correctly
1
The alternative conditions recommended by pretrial services
were based solely on Valdivia's past history and therefore did not
take into account the facts of the offense, the strength of the
evidence against him, or the statutory presumption.
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concluded that the risk of losing $8,000 would not be sufficient to
prevent Valdivia from fleeing. For major drug traffickers, "even
a large bond may be just a cost of doing business." Palmer-
Contreras, 835 F.2d at 17. Nor was it reasonable to believe that
Valdivia's family would be able to prevent him from fleeing, given
his strong connections at the ports and the airport and in foreign
countries and his strong motivation to flee.2
In sum, based on the presumption and the statutory factors
as applied to the particular facts of this case, we find no
reason to conclude that "a different result should have been
reached" by the district court.3 Accordingly, the district
court's decision is affirmed.
2
Because we find that the district court correctly concluded
that Valdivia presented a risk of flight that could not be avoided
by imposing the conditions Valdivia proposed, we need not reach the
question of whether his release would also impose an unavoidable
risk of danger to the community.
3
To the extent that Valdivia challenges the constitutionality
of the district court's decision, that argument is foreclosed by
the district court's correct conclusion that denial of bail was
necessary to prevent Valdivia's flight. Where, as here, the risk
of flight is unusually high, there is no constitutional right to
bail. United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir.
1985).
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