United States v. Pubill Rivera

USCA1 Opinion









February 10, 1992




___________________
No. 91-2208




UNITED STATES,

Appellee,

v.

EDGARDO PUBILL RIVERA,

Defendant, Appellant.


__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO


[Hon. Gilberto Gierbolini, U.S. District Judge]
___________________

___________________

Before

Torruella, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________

___________________

Jose Antonio (ABI) Lugo on brief for appellant.
_______________________
Robert S. Mueller, III, Assistant Attorney General, Mary Lee
______________________ ________
Warren, Chief Narcotic and Dangerous Drug Section, William H.
______ ___________
Kenety and Daniel F. Lopez-Romo, United States Attorney, on brief
______ ____________________
for appellee.



__________________

__________________


















Per Curiam. Appellant, Edgardo Pubill-Rivera, appeals
__________

from the decision of the United States District Court for the

District of Puerto Rico denying his request for release pending

trial.

BACKGROUND
__________

Appellant was indicted, along with over 25 other

persons, on charges of conspiring to possess cocaine with the

intent to distribute it and with aiding and abetting the

possession of cocaine with the intent to distribute it. The

amount of cocaine involved was over 10,000 kilograms. According

to the government, appellant played a leading role in this large

drug trafficking conspiracy. A detention hearing was held on

September 20, 1991. The hearing revealed the following evidence.

Appellant has seven children, several of whom he

supports. He has lived with his common-law wife for the past

eight years. At the time of his arrest, appellant was employed

at the gas station owned by his father. He was receiving

approximately $2,500 per month as salary. Appellant owns the

home in which his father lives; it is worth approximately

$80,000. Appellant refused to divulge the existence of other

financial assets to pretrial services. Appellant stated that

friends and family were willing to post eight parcels of real

estate worth over $440,000 as security for bail.

As for appellant's past criminal activity, he has three

prior narcotics convictions. Upon his first conviction,

appellant was sentenced to probation. However, probation















subsequently was revoked due to a violation of the terms of this

release. Nonetheless, appellant averred that he had been

released on bail in all three cases and always had appeared in

court when required.

The government cross-examined appellant's sister. In

addition to the home in which their father lives, appellant's

sister stated that she, appellant and their father own a

laundromat and that appellant owns a second home. She stated

that she had, on one occasion, purchased a bank check for $8,000

or $9,000 for her brother; she did not know how her brother had

obtained the money for this check. The government also proffered

the following evidence. Although appellant's tax return showed

a yearly income of only $24,000, appellant owned assets that

indicated unexplained sources of income. These assets included a

condominium, a $68,000 speedboat apparently paid for in cash,

$195,000 in real estate equity and three bank accounts.

Appellant has a passport and has travelled outside of the United

States. In addition, when he was arrested he possessed two fake

drivers' licenses. Finally, under the Sentencing Guidelines,

appellant probably would be subject to a minimum sentence of 25

years.

The magistrate judge before whom the hearing was held

ordered appellant detained prior to trial. He considered the

magnitude of the drug enterprise of which appellant was a part

and the length of the minimum sentence to which appellant could

be exposed. Based on these factors, the magistrate judge


3














concluded that appellant could not be trusted to follow any

conditions of release. In addition to finding that appellant

would pose a danger to the community if released, the magistrate

judge determined that the seriousness of the charges appellant

faces, along with the unexplained sources of income, provided

appellant with the incentive to flee. The district court judge

affirmed the detention order, rejecting appellant's argument that

18 U.S.C. 3142(g) prevented the magistrate judge from

considering defendant's sources of income.

DISCUSSION
__________

Based upon the transcript of the detention hearing, the

district court's findings and the parties' briefs, we now

consider the merits of the appeal. A special standard of review

applies to pretrial detention orders:

We approach our task mindful of our
obligation to afford independent review,
tempered by a degree of deference to the
determinations made below. Recognizing that
appellate courts are ill-equipped to resolve
factbound disputes, this standard cedes
particular respect, as a practical matter, to
the lower court's factual determinations.
Hence, independent review represents an
intermediate level of scrutiny, more rigorous
than the abuse-of-discretion or clear-error
standards, but stopping short of plenary or
de novo review.
_______

United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir.
_____________ _______

1990) (citations omitted).

The grand jury indictment provided probable cause

to believe that appellant had committed an offense for which

a maximum term of ten years or more is prescribed in the


4














Controlled Substances Act, 21 U.S.C. 801 et. seq. See
__ ___ ___

United States v. Vargas, 804 F.2d 157, 163 (1st Cir. 1986)
_____________ ______

(per curiam). Thus, the statutory presumption contained in

18 U.S.C. 3142(e) became applicable. This provides that

"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." To

rebut this presumption, appellant need only produce "some

evidence" to show that "what is true in general is not true

in [his] particular case . . . ." United States v. Jessup,
_____________ ______

757 F.2d 378, 384 (1st Cir. 1985). This is a burden of

production, not persuasion. Id. at 380-81. However, even
__

assuming appellant successfully rebuts the presumption by

producing "some evidence," the bubble does not "burst." Id.
__

at 383. The burden of persuasion remains on the government,

but the rebutted presumption retains evidentiary force: it

becomes a factor to be considered in addition to the other

relevant factors in 3142(g). United States v. Palmer-
______________ _______

Contreras, 835 F.2d 15, 18 (1st Cir. 1987) (per curiam).
_________

On the facts before us we agree with the district

court that a detention order was justified under the terms of

the statute. Congress has made it clear that "the risk that

a defendant will continue to engage in drug trafficking

constitutes a danger to the 'safety of any other person or

the community.'" S. Rep. No. 98-225, 98th Congress, 2d Sess.

13 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3196. Here,
____________


5














there is the risk that appellant might return to the

narcotics trade if released on bail; appellant's past

convictions did not prevent him from continuing to engage in

drug trafficking. Of relevance is the fact that he violated

the terms of his probation which then was revoked. See,
___

e.g., United States v. Williams, 753 F.2d 329, 335 (4th Cir.
___ _____________ ________

1985) (finding evidence that defendants would "continue to be

involved in narcotics if released on bail" based upon fact

that they had done so despite presence of prior convictions

and parole supervision); United States v. Dominquez, 629 F.
_____________ _________

Supp. 701 (N.D. Ind. 1986) (detention on grounds of danger to

community ordered where defendant drug suppliers continued to

engage in drug-related activities even after government

intervention).

Appellant's evidence did not significantly negate

the risk of danger established by the government. Indeed,

most of his evidence did not relate directly to the issue of

the "safety of community." Rather, the evidence of the

number of persons willing to aid appellant in securing bail

related to his community ties and the risk of flight

question. As Congress has pointed out, community ties have

no correlation with the question of the safety of the

community. See S. Rep. at 24, reprinted in 1984 U.S.C.C.A.N.
___ ____________

at 3207.

In addition, the evidence concerning the

undisclosed financial assets belonging to appellant and his


6














apparent access to large amounts of cash supports the

district court's finding that appellant presents a risk of

flight. Indeed, appellant has a passport and the apparent

wherewithal to obtain false identification. Finally,

appellant appears to belong to a large narcotics trafficking

organization; further, he is not just a "mule." Compare
_______

United States v. Palmer-Contreras, 835 F.2d at 18 (despite
______________ ________________

the fact that defendants were only mules, detention proper on

risk of flight grounds where organization for which

defendants worked appeared to have significant financial

resources to assist flight).

In conclusion, the seriousness of the charges

against appellant, the stiff sentence he faces if convicted,

the nature and size of the criminal enterprise to which he

allegedly belongs, his apparent access to large amounts of

cash and the fact that he continued to engage in drug-

trafficking after three state drug convictions provide a

solid foundation on which to base a detention order.

The order of the district court is affirmed.

The motion to dispense with oral argument is denied

as moot.












7