USCA1 Opinion
June 5, 1992 [NOT FOR PUBLICATION]
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No. 92-1445
UNITED STATES,
Appellee,
v.
KIM DE LOS SANTOS-FERRER,
Defendant, Appellant.
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No. 92-1446
UNITED STATES,
Appellee,
v.
PEDRO AYALA-ROSARIO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, 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 Cyr, Circuit Judge.
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Joaquin Monserrate Matienzo, on brief for appellant Kim de los
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Santos-Ferrer.
Everett M. DeJesus, on brief for appellant Pedro Ayala-Rosario.
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Daniel F. Lopez Romo, United States Attorney, and Antonio R.
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Bazan, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Defendants-appellants Kim de los
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Santos-Ferrer ("Santos") and Pedro Ayala Rosario ("Ayala")
were arrested by federal agents on February 5, 1992 and later
indicted by a grand jury for importing and possessing with
intent to distribute four kilograms of cocaine. The
government filed motions in the district court for pretrial
detention of Santos and Ayala under 18 U.S.C. 3142(f). A
magistrate judge held detention hearings and issued orders
setting bail for Santos at $225,000 with use of an electronic
monitoring device, and setting bail for Ayala at $150,000
with additional conditions to be imposed upon release.
The government on February 14, 1992 filed motions
requesting that the district court undertake a de novo review
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of the magistrate judge's orders and, in the meantime, stay
both defendants' release. The district court granted the
stays and, on February 28, 1992, conducted a de novo hearing.
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On March 27, 1992, the district court entered an order
denying bail and directing detention pending trial of both
Santos and Ayala. Santos and Ayala appeal. We affirm.
At the de novo hearing the government introduced
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the tape of a consensually monitored telephone conversation
held on February 5, 1992, between Santos and a confidential
informant. This tape was played in open court. In this
conversation the informant told Santos when and where a
shipment of cargo from Colombia would arrive by boat in
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Puerto Rico later that day. The informant made reference to
a Mr. Estela in Colombia, whom Santos acknowledged he knew.
It was arranged that Santos would meet the boat in Ponce and
would be driving a gold Porsche. The informant pressed
Santos to be sure to bring the requisite money. The
government also introduced a tape of a second consensually
monitored telephone conversation held a few minutes later
between the informant and another individual, in which this
drug pickup was further planned.
According to the government's evidence, later that
day Santos, Ayala and Jairo Torres, a Colombian national,
appeared at the dock area in Ponce in a Mitsubishi
automobile. Santos was driving. They approached the
informant and asked him to enter the vehicle. He did so and
placed on the floor in the back seat of the automobile a
wrapped-up package containing four kilograms of cocaine. He
asked about the money and was told by Santos that that was no
problem. The informant sat in the back, next to Ayala, and
the automobile began to drive away. Federal agents then
ordered the car to stop. Santos, Ayala, and Torres were
placed under arrest.
Although defendants were driving a Mitsubishi, the
government introduced evidence that Santos owns a gold
Porsche, the keys to which were seized upon his arrest. Also
seized from the automobile were $3,970 in U.S. currency; a
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cellular telephone assigned the number to which the
confidential informant's two calls had been placed; and
documents belonging to Santos' sister, Maria de los Santos-
Ferrer, relating to a pending cocaine case in federal court
in Puerto Rico in which she is a defendant. A beeper/pager
was seized from Ayala. A federal agent testified that
through all this Ayala sat in the back of the car, saying
nothing, until his arrest.
The government also proffered evidence of prior
cocaine smuggling activity by Santos and Ayala. According to
this evidence, on September 24, 1991, following a high-speed
chase, federal agents found 93 kilograms of cocaine in two
suitcases in a Jeep Cherokee. Also inside the vehicle were
found a cellular phone, whose memory revealed that the last
number dialed on the phone was the number of Santos' home; a
beeper belonging to Santos' wife; and a beeper belonging to
Ayala. Ayala's beeper contained messages to call a liquor
store owned by Santos and to call the alias of a Dominican
national who was later charged with a murder that occurred at
the landing site of the 93 kilograms of cocaine.
The Jeep Cherokee was registered in the name of
Ayala's father and was reported stolen the next day by
Ayala's sister, who gave two different accounts of the place
from which it had been stolen. Ayala later stated that his
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beeper was in the vehicle because he was fixing it the day
before it was seized.
The government also proffered evidence that in
another cocaine prosecution in which three defendants pleaded
guilty, one of the defendants at the time he was arrested had
a beeper containing a message to call the liquor store owned
by Santos. In yet another cocaine prosecution, a
confidential informant identified Santos as the source of the
cocaine.
Evidence in the record showed that Santos has lived
in Puerto Rico, where he has a wife and three minor children,
for the last thirty years. He works in Puerto Rico as a
well-known musician, singer, and band leader, and also owns a
liquor store. Ayala, similarly, is a lifelong resident of
Puerto Rico, where he has a wife and two minor children. He
works in Puerto Rico as a self-employed truck driver and
mechanic.
The district court, finding probable cause to
believe that Santos and Ayala had committed a narcotics
offense carrying a maximum term of imprisonment of ten years
or more, invoked the presumption of dangerousness and risk of
flight in 18 U.S.C. 3142(e). The court ordered pretrial
detention of both Santos and Ayala on the grounds "that no
condition or combination of conditions will reasonably assure
the appearance of these defendants as required and the safety
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of the community." The district court summarized its
findings as follows:
Because of their strong community
ties, the question of whether these two
defendants will probably flee is not
easily answered although the incentive to
leave is increased by the weight of the
evidence in the government's case.
However, the question of their
dangerousness to the community is more
readily resolved against them. These are
not minor players on the stage of drug
trafficking. The vehicles, beepers,
cellular phones, telephone tolls and
quantities of cocaine involved in this
and related cases, plus their active
involvement with other major drug
traffickers lead to the conclusion that
if released they will pose an immediate
danger to the safety of the community.
We undertake an independent review of the district
court's pretrial detention decision, but with appropriate
deference to the district court's first-hand judgment.
United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).
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See United States v. Bayko, 774 F.2d 516, 520 (1st Cir.
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1985).
We agree with the district court that the
government made out a strong case that "[t]hese are not minor
players on the stage of drug trafficking." The evidence
against both Santos and Ayala in the instant case appears
weighty. According to this evidence, both men arrived in the
same automobile for the pre-arranged cocaine pickup. The
arrangement was made by the confidential informant on behalf
of an individual in Colombia; a Colombian national
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accompanied Santos and Ayala in the automobile. It was
Santos whom the confidential informant had been instructed to
call to arrange the pickup.
In addition, the government's proffer of evidence
regarding other incidents of cocaine smuggling, as outlined
above, persuasively suggests that both Santos and Ayala are
deeply involved in the local trade in cocaine. In two of
these incidents, as well as in the instant case, calls to
Santos' cellular telephone or home, or messages on beepers to
call Santos' liquor store, appear to have played a role in
the cocaine transaction. In one of these incidents, as well
as in the instant case, a beeper belonging to Ayala was
seized. All of this evidence makes it difficult to think
that the instant charges against Santos and Ayala arise out
of an isolated incident in which either played only a bit
part.
This evidence is bolstered, of course, by the
presumption of dangerousness established by 18 U.S.C.
1342(e). The presumption is triggered in this case because
both Santos and Ayala have been indicted for a drug offense
that carries a maximum term of imprisonment of ten years or
more. Id.; 21 U.S.C. 841(a)(1), (b)(1)(A). Even if
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Santos or Ayala were deemed to have introduced "some
evidence" to rebut the presumption, "the presumption does not
disappear, but rather retains evidentiary weight -- the
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amount depending on how closely defendant's case resembles
the congressional paradigm -- to be considered along with all
the other relevant factors." United States v. Palmer-
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Contreras, 835 F.2d 15, 18 (1st Cir. 1987) (citation
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omitted). See United States v. Jessup, 757 F.2d 378, 382-84
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(1st Cir. 1985).
Given the above-discussed evidence of defendants'
apparent involvement in a drug trafficking organization, this
case does indeed closely resemble the Congressional paradigm.
Congress found that "[p]ersons charged with major drug
felonies are often in the business of importing or
distributing dangerous drugs, and thus, because of the nature
of the criminal activity with which they are charged, they
pose a significant risk of pretrial recidivism." S. Rep. No.
98-225, 98th Cong., 2d Sess., at 20, reprinted in 1984 U.S.
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Code Cong. & Admin. News 3182, 3203. Congress felt that an
"especially significant" consideration in determining danger
to the community "is the drug network's ability to continue
to function while the defendant awaits trial." United States
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v. Portes, 786 F.2d 758, 765 (7th Cir. 1985). We are
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satisfied that the government's evidence, viewed in the light
of the statutory presumption, establishes that both Santos
and Ayala would pose a danger to the community if released
pending trial.
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Although we need not reach the issue, we would also
conclude that pretrial detention is justified on risk-of-
flight grounds, although we agree with the district court
that this question is much closer. It is true that both
Santos and Ayala have close and long-standing personal and
family ties to Puerto Rico. On the other hand, the
government's evidence strongly suggests that they are active
participants in a drug trafficking operation with close ties
to Colombian drug traffickers. The evidence suggests that
Santos himself has been in contact with them. Thus, there is
ample reason to believe that both Santos and Ayala have both
the incentive and the wherewithal to flee.
The statutory presumption of risk-of-flight also
applies and, although rebutted, retains evidentiary weight.
"[T]his presumption reflects Congress's findings that drug
traffickers often have the resources and foreign contacts to
escape to other countries. Forfeiture of even a large bond
may be just a cost of doing business, and hence drug
traffickers pose special flight risks." Palmer-Contreras,
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supra, 835 F.2d at 17.
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It is as to close issues like this, moreover, that
the deference that we accord to the district court's first-
hand determinations in bail cases, O'Brien, supra, 895 F.2d
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at 814, comes into play. The district court, at a de novo
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hearing, heard the taped telephone calls placed by the
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confidential informant, including the one with Santos, and
the testimony of the federal agent who made the arrest.
Given the strength of the government's evidence of
defendants' involvement in a drug trafficking organization,
we are not moved to quarrel with the district court's first-
hand determination (albeit conclusorily stated) that
defendants' ties to foreign drug traffickers are sufficiently
strong so that pretrial detention of both defendants is
justified on risk-of-flight grounds.
The district court's pretrial detention orders are
affirmed.
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