USCA1 Opinion
April 21, 1992 [NOT FOR PUBLICATION]
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No. 92-1126
No. 92-1129
UNITED STATES,
Appellee,
v.
PETER KATTAR,
Defendant, Appellant.
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No. 92-1127
UNITED STATES,
Appellee,
v.
SAYED HACHEM,
Defendant, Appellant.
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No. 92-1128
UNITED STATES,
Appellee,
v.
DAVID ABDOO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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James B. Krasnoo on brief for appellant, Peter Kattar.
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Douglas I. Louison and Merrick & Louison on brief for appellant,
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Sayed Hachem.
Albert F. Cullen, Jr. and Cullen & Butters on brief for
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appellant, David Abdoo.
A. John Pappalardo, Acting United States Attorney, and Robert W.
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Iuliano, Assistant United States Attorney, on brief for appellee.
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Per Curiam. In these consolidated appeals, Peter
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Kattar, Sayed Hachem and David Abdoo appeal from the decision
of the United States District Court for the District of
Massachusetts denying their requests for release pending
trial.
BACKGROUND
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Appellants were indicted, along with nine other
defendants, on charges of conspiring to import hashish in
violation of 21 U.S.C. 963. Kattar and Abdoo also were
charged with conspiring to possess hashish with the intent to
distribute it in violation of 21 U.S.C. 864.1 The amount
of hashish involved was approximately three tons. The
government moved to detain appellants under 18 U.S.C.
3142(f). A magistrate judge held a hearing concerning Kattar
and Hachem on September 4, 1991. As for Abdoo, the same
magistrate judge held hearings on September 9, November 27,
and December 4, 1991. The magistrate judge determined that
all three appellants presented a danger to the community and
that no conditions or combination of conditions of release
would reasonably assure the safety of the community. He also
found that Kattar and Hachem presented risks of flight.
On appeal to the trial judge, new hearings were
held as to each appellant. The trial judge upheld the
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1. In a separate indictment, Kattar was charged with money
laundering in violation of 18 U.S.C. 1956(a)(3).
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detention orders entered by the magistrate judge; in
addition, the judge concluded that Abdoo presented a risk of
flight as well as a danger to the community. Although the
judge did not make written findings, the transcripts of the
hearings reveal that he clearly articulated the facts and
reasons upon which he based his affirmance of the magistrate
judge's detention orders.
STANDARD OF REVIEW
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It is by now well-settled that we employ an
independent standard of review which nonetheless gives
deference to the decision of the district court. See United
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States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).
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Because 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." United States v. Tortora, 922 F.2d 880,
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882-83 (1st Cir. 1990). Where the trial court has taken
evidence and made carefully detailed findings, as in this
case, the degree of deference is heightened. With these
guidelines in mind, we turn to the merits of the detention
orders.
THE DISTRICT COURT'S FINDINGS
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The grand jury indictment, which gave the district
court probable cause to believe that appellants had committed
offenses for which they could receive sentences of ten years
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or more for violating the Controlled Substances Act, 21
U.S.C. 801 et seq., triggers the "rebuttable presumption"
contained in 3142(e). See United States v. Dillon, 938
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F.2d 1412, 1416 (1st Cir. 1991). Thus, "[s]ubject to
rebuttal by the person, 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. . . ." 18 U.S.C. 3142(e). The burden of
persuasion remains on the government and the presumption
retains evidentiary weight where, as here and as in most
cases, the defendants come forward with "some" refutatory
evidence. See id.; see also United States v. Perez-Franco,
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839 F.2d 867, 870 (1st Cir. 1988) (per curiam).
As for risk of flight, the government must
establish by a preponderance of the evidence that no set of
conditions of release will reasonably assure the presence of
the appellants as required. See United States v. Patriarca,
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948 F.2d 789, 793 (1st Cir. 1991) (preponderance of evidence
standard applies to risk of flight determinations); Dillon,
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938 F.2d at 1416. To measure whether the government has met
this burden, the district court is required to take into
account the relevant factors set forth in 3142(g): (1) the
weight of the evidence as to guilt; (2) the nature and
circumstances of the crime charged; and (3) the
characteristics of the accused, including community and
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family ties, past history, financial resources and
employment. We summarize the findings of the district court.
(1) Weight of the Evidence
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The evidence presented by the government was the
result of an extensive investigation conducted by the Federal
Bureau of Investigation, the Bureau of Alcohol, Tobacco and
Firearms and the United States Customs Service. This
investigation occurred over a period of more than one year
and involved the use of a confidential informant and an
undercover FBI agent, both of whom had direct contact with
Kattar and Hachem; the government also employed physical and
electronic surveillance, including the interception and
recording of telephone and oral communications. The district
court concluded that, in the light of such direct evidence,
the government had a very strong case. The question whether
evidence such as tape recordings will be admissable at trial
does not preclude their consideration for pre-trial bail
decisions. See Tortora, 922 F.2d at 886.
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(2) The Nature of the Offense
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Kattar acted as the organizer of the alleged
conspiracy. He is a United States citizen. He has two
passports, however, one issued by the United States and one
issued by Lebanon. He also owns property in Lebanon and has
a bank account there. Hachem is a citizen of Lebanon,
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although he has lived in the United States for the past ten
years as a resident alien. According to statements made by
Hachem, he had sufficient political contacts in Lebanon to
expedite the importation of the hashish.
Through these contacts and others, Kattar had
access to large amounts of hashish grown in Lebanon. Abdoo,
a resident of Vermont, and another defendant provided Kattar
with purchasers for the hashish -- an organized crime network
in Canada. If successful, Kattar planned to import hashish
on a monthly basis. As part of the effort to bring the first
shipment of hashish into this country, Kattar and Abdoo each
advanced $100,000. In addition, Kattar travelled to Lebanon
on two occasions. Hachem visited Lebanon more frequently; in
fact, he personally oversaw the initial packaging of the
hashish.
As a result of these efforts, a ship departed from
Lebanon in May 1991. On it was a sealed container in which
approximately 600 barrels were housed. The hashish was
packed inside over 300 of the barrels under layers of olives
and Lebanese spices. United States Customs officials seized
the container when the ship arrived in Boston in August 1991.
According to an FBI agent who testified at the September 9th
hearing before the magistrate judge, the three tons of
hashish had a street value in Canada of over $90,000,000.
(3) Individual Characteristics
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(a) Kattar. The trial judge acknowledged Kattar's
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longstanding ties to the community in which he lived and the
presence in his life of substantial family ties. Contrary to
the government's assertion, the judge accepted Kattar's claim
that he was legitimately involved in the financial services
business. Nonetheless, the judge determined that Kattar's
employment was "in no small part" connected to illegal
activities. In addition to the drug trafficking scheme,
there was evidence that Kattar intended to act as an arms
importer. Specifically, when the undercover agent, posing as
a foreign mercenary, asked whether Kattar could obtain guns
for him, Kattar indicated that he could. At a subsequent
meeting between Kattar, Abdoo and the agent, Kattar indicated
that Abdoo would be securing the weapons requested by the
agent.
The judge found that Kattar had international
contacts and knowledge concerning ways to surreptitiously
exit from this country and flee to Lebanon. Although not
noted by the judge, it is undisputed that Kattar stated, on
more than one occasion, that he would not remain in this
country should he be apprehended. The pressure to flee, the
court concluded, was particularly strong because Kattar, who
is sixty-one years of age, faces, if convicted, what
essentially may turn out to be a life sentence.
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(b) Hachem. Like Kattar, the judge found that
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Hachem had the international contacts and know-how to effect
a departure from this country. In addition, as a resident
alien, Hachem, should he be convicted, would be faced with
deportation after his prison term. Thus, the court pointed
out, the only difference to Hachem is "whether or not he will
serve time in an American prison before he's deported."
(c) Abdoo. The judge determined that Abdoo was a
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core figure in Kattar's operation, serving as a broker and as
a financier. In so finding, the judge specifically rejected
Abdoo's claim that he had withdrawn from the drug deal before
the shipment arrived in Boston. The government contended
that Abdoo also had been involved in two aborted attempts to
smuggle hashish directly into Canada. These schemes involved
the use of boats, diving teams, and underwater storage of the
drugs at certain buoy markers. The judge concluded, however,
that the evidence only supported a finding that Abdoo was
quite familiar with international drug traffic in general and
the above operations in particular. Abdoo's knowledge of the
details of the two Canadian operations, the judge found,
reflected access to non-public sources of information
concerning the activities of organized crime in Canada.
As for Abdoo's involvement in the arms trade, the
trial judge rejected the government's allegation that Abdoo
had sought to purchase weapons from an individual in Vermont.
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The evidence, the judge concluded, was too conflicting.
Nonetheless, the judge credited the information provided by
the undercover agent that Kattar had identified Abdoo as
Kattar's source of arms. The court noted that by his
silence, Abdoo essentially had "ratified" Kattar's
description of Abdoo's role.
Abdoo presented testimony and affidavits from
individuals who had personal and professional relationships
with him. These individuals attested to Abdoo's general
reputation and charitable activities in the community and his
good standing as a respected businessman. They generally
stated that Abdoo would not flee if released, especially
given the fact that he runs two successful businesses in
Vermont.
The judge acknowledged that the decision whether to
detain Abdoo pending trial presented a close question. On
the one hand, Abdoo had no prior criminal history and no
history of drug or alcohol abuse; his reputation in and
impact on his community were positive. On the other hand,
those who had submitted character references obviously were
not familiar with the history and characteristics revealed by
the charges contained in the indictment.
Weighing the seriousness of these charges and the
strength of the government's case against Abdoo's "public
character" and relation to the community, the court concluded
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that there were no conditions that would reasonably assure
Abdoo's presence at trial. Specifically, Abdoo's familiarity
with international drug operations and his apparent access to
large amounts of cash supported a finding that Abdoo
presented a risk of flight.
DISCUSSION
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On appeal, Kattar argues that it would, in fact, be
very difficult for him to flee. He offers to turn over his
Lebanese passport, maintaining that without it, his alleged
Lebanese contacts could not aid him in entering that country.
He next contends that he has no available financial
resources. Because the first (and, he claims, only) drug
shipment was confiscated, Kattar maintains he never actually
possessed the hashish or realized any profit from selling it.
He emphasizes that if his real estate holdings and those of
his wife were used as security, there is no likelihood that
he could raise the amount of money needed to flee. In
addition, he avers that as a result of the interception of
the first shipment, there is no existing drug organization
that could assist him in relocating. As for his prior trips
to Lebanon, Kattar avers that he travelled there reluctantly
and, on one occasion, only at the urging of either the
confidential informant or the undercover agent. Finally, he
points to the fact that he was released prior to trial in a
previous federal case and always had appeared as required.
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Hachem argues that his ten-year residency in the
community along with the absence of significant financial
assets adequately rebuts the presumption of flight. In
addition, as a minor player in the alleged conspiracy, Hachem
contends that he did not have access to any of the money used
to finance the drug enterprise. Without his passport and
without aid from Kattar's organization which Hachem, like
Kattar, maintains has essentially been disabled, he does not
have the means or wherewithal to seek asylum elsewhere.
Abdoo argues that the government did not produce
"clear and convincing" evidence that he presented a risk of
flight. He points to his admittedly strong community ties
and lack of criminal history. As for his access to cash to
fund a departure, Abdoo maintains that there was no support
for the court's finding that he had strong ties to organized
crime in Canada. Rather, he asserts, the evidence "shows
nothing more than monies becoming available to finance one
deal from which Abdoo withdrew." Thus, Abdoo states, the
court erred in finding that no conditions of release would
reasonably assure his appearance at trial. Finally, Abdoo
argues that his rights to due process and a speedy trial will
be violated if he is detained pending trial. Because of the
number of audiotapes of surveillance and the voluminous
transcripts that must be reviewed, pretrial detention will be
prolonged, he contends, through no fault of his own.
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We find that the factors favoring detention
outweigh those favoring release. Although Kattar has strong
community and family ties, his own words render him a risk of
flight. The fact that he appeared in court as required when
he previously was under indictment for mail fraud does not
change our calculation. The penal consequences of that
offense were not as severe as those Kattar currently faces.
As for Hachem, the prospect of deportation if he is convicted
provides a motive for flight. This is not outbalanced by
Hachem's ten-year residency in this country.
Although Abdoo presents a closer case, we think
that the trial judge's finding that no conditions of release
would reasonably assure Abdoo's presence at trial is
supported by the evidence. We are mindful of his past
history and reputation in the community. Nonetheless, this
is no ordinary drug case. Abdoo was a central figure in
financing and organizing a criminal enterprise which was
successful in importing over three tons of hashish. Given
the gravity of the charges and the strength of the
government's case, the incentive to relocate is pronounced.
We note, in relation to Abdoo's due process and speedy trial
claims, that it is too early to ascertain, without undue
speculation, whether his pretrial incarceration will be
sufficiently long enough to trigger constitutional concerns.
See Tortora, 922 F.2d at 889.
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In sum, we find that the evidence indicates that
all three appellants were involved in the kind of "highly
lucrative" drug operation that prompted Congress to enact the
Bail Reform Act. As we have explained before, the rebuttable
presumption contained in 3142(e) reflects Congress's
finding that generally drug traffickers pose special risks of
flight. See United States v. Palmer-Contreras, 835 F.2d 15,
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17 (1st Cir. 1987) (per curiam). Thus, we hold that the
district court did not err in determining that, despite
appellants' proffer of evidence, no conditions of release
would reasonably assure their appearance as required.
Because we conclude that detention is required to prevent
flight, we need not address the issue whether appellants also
present a danger to the community. Cf. United States v.
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Jessup, 757 F.2d 378, 380 (1st Cir. 1985).
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The judgment of the district court is affirmed.
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