USCA1 Opinion
September 17, 1992 [NOT FOR PUBLICATION]
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No. 92-1839
UNITED STATES,
Appellee,
v.
JAIRO GIRALDO PARRA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Luis Rafael Rivera on brief for appellant.
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Daniel F. Lopez Romo, United States Attorney, Carlos A.
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Perez-Irizarry, Assistant United States Attorney, and Jose A.
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Quiles Espinosa, Senior Litigation Counsel, on brief for
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appellee.
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Per Curiam. Defendant Jairo Giraldo-Parra appeals from
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an order denying his request for pretrial bail. We affirm.
I.
Giraldo-Parra and five codefendants have been charged
with violating 21 U.S.C. 841(a)(1), 846 and 18 U.S.C. 2 by
participating in a conspiracy to possess with intent to
distribute cocaine and heroin between August and December
1991.1 During that time, Giraldo-Parra, a Colombian
national, owned a restaurant in the Hato Rey section of
Puerto Rico called "Mi Peque a Colombia." The thirteen count
indictment alleged that the defendants used this restaurant
as a front for their drug trafficking activities. Giraldo-
Parra was specifically charged with aiding and abetting in
possessing drugs for distribution and distributing 27.4 grams
of heroin on August 29, 1991, 27 grams of heroin on September
25, 1991, 489.1 grams of cocaine on December 6, 1991, and
.767 grams of heroin and 5.941 grams of cocaine on December
12, 1991. The Drug Enforcement Administration (DEA) arrested
the five co-defendants on May 27, 1992 but was unable to
locate Giraldo-Parra, who voluntarily surrendered to the
authorities on the following day.
A detention hearing was held before a magistrate judge
on May 29, 1992. The transcript of that hearing is not
before us but the magistrate judge's detention order
indicates that Immigration and Naturalization Services (INS)
employee Richard Escalera and DEA agents Pablo Rivera and
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1. The codefendants are Oscar Gonzalez-Lopez, Daniel Atilio-
Adinolfi, Victor Rodriguez-Alvarez, Edgar Rodriguez-Velazquez
and Jorge Omar Lopez-Almeida.
James Baker testified for the government. Giraldo-Parra's
counsel made a proffer on his behalf. On June 9, 1992 the
magistrate judge issued a written detention order requiring
that all the defendants, including Giraldo-Parra, remain
committed. The magistrate judge found that the defendants
had been charged with drug related offenses that triggered
the presumption that they posed a risk of flight and danger
to the community under 18 U.S.C. 3142(e).2 Based on the
evidence discussed below, the magistrate judge found that no
conditions could assure Giraldo-Parra's presence in court or
safety of the community. Giraldo-Parra "appealed" this
decision to the district court.
A second evidentiary hearing was held before a district
judge. At the conclusion of the hearing the district judge
sustained the findings of the magistrate judge and denied
bail. This appeal followed.
II.
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2. 18 U.S.C. 3142(e) provides, in relevant part, that
Subject 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
if the judicial officer finds that there
is probable cause to believe that the
person committed an offense for which a
maximum term of imprisonment of ten years
or more is prescribed in the Controlled
Substances Act (21 U.S.C. 801 et seq.),
... .
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The record before us consists of the transcript of the
district court's hearing and the magistrate judge's detention
order. We have observed that meaningful appellate review is
possible if either the judicial officer initially considering
the matter or the district judge provides a written statement
of reasons underlying a detention or release order. United
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States v. Tortora, 922 F.2d 880, 884 (1st Cir. 1990)(citing
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United States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989)(per
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curiam)). As the district judge sustained the magistrate
judge's findings, we recite the evidence the magistrate judge
found and supplement this description with the additional
evidence adduced at the district court hearing.
DEA agent Pablo Rivera generally related how one or more
of the defendants sold drugs to undercover agents at or near
Giraldo-Parra's restaurant on five occasions. On August 21,
1991 defendant Oscar Gonzalez-Lopez informed the agents that
his source had the following drugs for sale: 1/8 kilogram of
heroin for $29,000, 1 ounce of heroin for $7500, and 1 gram
of heroin for $250. Gonzalez Lopez told the agents to go to
Giraldo-Parra's restaurant. While the agents were parked
outside, Gonzalez Lopez brought them a package of cigarettes
containing heroin. On August 29, 1991, Gonzalez Lopez
arranged to sell the agents an ounce of heroin for $7500.
DEA Agent Pablo Rivera testified that this sale was conducted
outside the restaurant and that defendant Rodriguez Alvarez
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required the agents to pay first, after which Rodriguez
Alvarez went inside the restaurant and retrieved the
heroin.3 Later on, Giraldo-Parra arrived at the restaurant.
Rodriguez Velazquez gave him a folded pack of money.
On September 13, 1991 Rodriguez Alvarez sold an ounce of
heroin to an undercover agent for $7000 after meeting at
Giraldo-Parra's restaurant. On September 25th, after
exchanging an ounce of heroin for $7000 at another
restaurant, Rodriguez Alvarez took the money to Mi Peque a
Colombia, where Giraldo-Parra and two other defendants were
waiting. Rodriguez Alvarez asked defendant Daniel Atilio
Adinolfi for his commission. Atilio Adinolfi referred
Rodriguez Alvarez to Giraldo-Parra to collect his commission.
Giraldo-Parra told Rodriguez Alvarez that $200 was missing
from the proceeds of the sale.
An informant met defendant Daniel Atilio Adinolfi at
Giraldo-Parra's restaurant on December 6, 1991 and purchased
1/2 kilogram of cocaine for $5000. DEA agent Jefferson Moran
described this transaction in more detail before the district
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3. During the interval between the magistrate judge's
decision and the district court hearing Rodriguez Alvarez
began cooperating with the government. The evidence before
the district court indicated that Rodriguez Alvarez delivered
an ounce of heroin to undercover agent Jefferson Moran on
August 29, 1991, after obtaining the heroin from defendant
Edgardo Rodriguez Velazquez (Giraldo-Parra's nephew). After
the sale was completed, Giraldo-Parra telephoned the
restaurant and was told that Rodriguez Alvarez had delivered
the heroin.
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court. According to Moran, the informant entered the
restaurant and met with defendant Daniel Atilio Adinolfi. As
the informant and Atilio Adinolfi were negotiating, a second
undercover officer entered the restaurant and overheard the
informant tell Giraldo-Parra that he was interested in buying
a car from Atilio Adinolfi. Giraldo-Parra told the informant
to take a long drive with Atilio Adinolfi and to buy the car
if he liked it. The informant and Atilio Adinolfi then left
the restaurant and entered a Burgundy Ford. They drove
around the corner and consummated the sale. Their activities
were surveilled by the DEA and by another codefendant, Jorge
Lopez Almeida, who had followed the Ford on a motorcycle.
The informant and Atilio Adinolfi returned to the restaurant
and parked out front, still followed by the DEA and Lopez
Almeida. The informant exited the restaurant with a brown
paper bag and departed with the undercover agent. Lopez
Almeida followed them until the local police stopped him to
prevent his discovery of the undercover operation.
At the district court hearing agent Moran further
related that on December 12, 1991, DEA agent Ortiz and
confidential informants went to the restaurant to buy a
sample of heroin and to obtain 6 grams of cocaine that had
been missing from the 1/2 kilogram sold on December 6, 1991.
An informant entered the restaurant and greeted defendant
Daniel Atilio Adinolfi, who indicated that Giraldo-Parra had
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the heroin and that the informant should wait because
Giraldo-Parra was speaking to other people. The informant
then saw Atilio Adinolfi take something from Giraldo-Parra.
Atilio Adinolfi immediately returned to the informant and
gave him the sample of heroin and six grams of cocaine that
had been missing from the half kilogram. Atilio Adinolfi
told the informant he could pay for the heroin on the
following day.
Agent Moran testified that the DEA considered Giraldo-
Parra to be a significant offender because DEA intelligence
indicated that he was the head of an organization that
imported a new type of Colombian heroin, 90-94% pure, that
had been trying to make its way into the United States.
Agent Amador testified that Rodriguez Alvarez said that while
incarcerated together at the state penitentiary Giraldo-Parra
and two other defendants threatened him because he had
allowed an undercover agent to penetrate the organization.
Giraldo-Parra allegedly instructed Rodriguez Alvarez to tell
the authorities that he alone (i.e., Rodriguez Alvarez) was
responsible for distributing narcotics.
The evidence before the magistrate judge and judge as to
Giraldo-Parra's history and personal characteristics
indicated that Giraldo Parra is a resident alien who entered
Puerto Rico legally around 1980. He married, had two
children, and divorced in 1988. His ex-wife reported that he
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provided child support payments. He has been employed for
the past three years as an encyclopedia salesman earning
approximately $28,000 per year. He has no real property and
sold the restaurant and a video store that he owned in
December 1991. Giraldo-Parra's family ties to Puerto Rico
included a half-brother and common law wife, Aixa Santiago
Nieves, with whom he had lived for approximately three years
and had another child. Santiago related that Giraldo-Parra
visits his two children from his previous marriage weekly.
She described their own relationship as stable, although they
had quarrels. She stated that he is diabetic and that she
takes food to him in prison. Santiago testified that her
parents were willing to post their house, which she estimated
had a $100,000 value, as collateral for Giraldo-Parra's bail.
Pretrial Services Officer Jose Oben deemed Giraldo-
Parra's relationship with Aixa Santiago Nieves to be unstable
because she had indicated that they had separated.4 While
Giraldo-Parra had no prior arrests in Puerto Rico, shortly
after his arrest the INS filed a detainer against him.
Officer Oben recommended that, in view of the presumption
that Giraldo-Parra presented a risk of flight and danger to
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4. DEA Agent Domingo Carrasquillo testified that another
confidential informant had informed the DEA that Giraldo-
Parra was involved with the daughter of another drug
trafficker. He allegedly was with her when the DEA arrested
the other defendants.
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the community, Giraldo-Parra should be detained pending trial
particularly because he appeared to be deportable due to the
INS' detainer.
The magistrate judge concluded that notwithstanding the
evidence of Giraldo-Parra's family and community ties, in
view of the statutory presumption, the fact that an INS
detainer had been filed, and the fact that his relationship
to his common law wife appeared unstable, Giraldo-Parra
continued to pose both a risk of flight and danger to the
community. In sustaining the magistrate judge's findings, the
district court considered the same factors as well as the
evidence that Giraldo-Parra is the leader of the organization
charged with conspiracy, that the drug sales involved cocaine
of high purity and a new type of heroin, and that Giraldo-
Parra had participated in threatening the cooperating
defendant.5 The court also viewed the evidence against
Giraldo-Parra as strong.
III.
On appeal, Giraldo-Parra argues that he succeeded in
rebutting the presumption of flight and dangerousness and
that the government failed to meet its burden of proving that
no conditions or combination of conditions could reasonably
assure his appearance at trial or the safety of the
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5. We note that there was no evidence on the purity of the
cocaine.
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community. In particular, the defendant says that the
evidence against him is weak because none of the alleged
transactions took place inside the restaurant and there is no
direct evidence of his participation in a sale of drugs.
We afford the district court's order independent
review, with deference to the determination of the district
court. United States v. Patriarca, 948 F.2d 789, 791 (1st
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Cir. 1991). This standard "represents an intermediate level
of scrutiny, more rigorous than the abuse-of-discretion or
clear-error standards, but stopping short of plenary or de
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novo review." United States v. Tortora, 922 F.2d 880, 883
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(1st Cir. 1990). "[I]ndependent review ...can vary in
intensity according to the care put into the decision below."
Patriarca, 948 F.2d at 794. We consider whether "due
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attention was given to all the statutory factors [in 18
U.S.C. 3142(g) and] ... shall give such deference as we
think the care and consideration manifested by the district
court warrant." United States v. O'Brien, 895 F.2d 810, 816
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(1st Cir. 1990).
First, it is clear that the district court properly
determined that the presumption that "no condition or
combination of conditions will reasonably assure the
appearance of the ... [defendant] as required and the safety
of the community ... " applied to Giraldo-Parra. See 18
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U.S.C. 3142(e). Eight of the thirteen counts in the
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indictment charged him with violations of the Controlled
Substances Act, 21 U.S.C. 841(a)(1) and 846. The
indictment established probable cause to believe that
Giraldo-Parra committed one or more offenses for which he may
receive a sentence of ten years of more. United States v.
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Vargas, 804 F.2d 157, 163 (1st Cir. 1986).6
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Notwithstanding the applicability of 3142(e)'s
presumption, the government retains the burden of persuading
the court by a preponderance of the evidence that "'no
condition or combination of conditions will reasonably
assure' the defendant's presence at trial." United States v.
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Perez Franco, 839 F.2d 867, 870 (1st Cir. 1988)(citation
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omitted). See also United States v. Patriarca, 948 F.2d 789,
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793 (1st Cir. 1991)(upholding district court's application of
preponderance of the evidence standard). In contrast, proof
that no conditions of release will reasonably assure the
safety of any other person or the community must be by "clear
and convincing evidence." See 18 U.S.C. 3142(f).
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A defendant need only produce "some evidence" to rebut
the presumption of flight. Perez-Franco, 839 F.2d at 870;
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6. Giraldo-Parra argues that he is likely to receive a
sentence of less than ten years under the Sentencing
Guidelines because the quantities of drugs involved are
relatively small and he has no criminal record. This does
not render the statutory presumption inapplicable. Rather,
these considerations are relevant to the weight the
presumption is afforded. See United States v. Moss, 887 F.2d
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333, 337 (1st Cir. 1989).
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United States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985).
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Thereafter, the presumption retains evidentiary weight, and
"the magistrate or judge should still keep in mind the fact
that Congress has found that [drug] offenders, as a general
rule, pose special risks of flight. The magistrate or judge
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should incorporate that fact and finding among the other
special factors that Congress has told him to weigh ...
[under 18 U.S.C. 3142(g)]."7 Applying these principles,
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7. Under 18 U.S.C. 3142(g), the district court is required
to consider:
(1) the nature and circumstances of the offense
charged, including whether the offense is a crime
of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person,
including-
(A) the person's character, physical and
mental condition, family ties,
employment, financial resources, length
of residence in the community, community
ties, past conduct, history relating to
drug or alcohol abuse, criminal history,
and record concerning appearance at court
proceedings; and
(B) whether, at the time of the current
offense or arrest, the person was on
probation, on parole, or on other release
pending trial, sentencing, appeal, or
completion of sentence for an offense
under Federal, State, or local law; and
(4) the nature and seriousness of the danger to
any person or the community that would be posed by
the person's release... .
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we conclude that the government has met its burden of
persuasion that Giraldo-Parra poses a risk of flight.
Giraldo-Parra is alleged to be the leader of an
organization involved in importing high purity heroin into
the United States from Colombia. While the quantities
involved in the transactions are arguably small, the heroin
was said to be a "new breed" of "very high quality" that had
been trying to make its way to the United States. (App. 31-
32) This indicates that Giraldo-Parra is a drug offender
with important foreign connections and that the presumption
that he posed a risk of flight was due considerable weight
even in the face of the evidence Giraldo-Parra adduced in
rebuttal. We also think that the district court was
warranted in concluding that the evidence against Giraldo-
Parra is strong, particularly in view of Rodriguez Alvarez's
statements. To be sure, the evidence before the magistrate
judge was considerably less than that before the district
judge. The government only placed Giraldo-Parra at the
restaurant on two occasions (August 29 and September 25) at
the hearing before the magistrate judge and on both occasions
he did not arrive until after the sales had been consummated.
Nevertheless, the evidence before the magistrate judge
suggested that Giraldo-Parra received the proceeds of those
sales. This conclusion was bolstered by Rodriguez Alvarez's
statements as described to the district judge. In addition,
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agent Moran's testimony suggested that Giraldo-Parra invited
the informant to test the cocaine that was the subject of the
December 6th sale and that he also gave defendant Atilio
Adinolfi the sample of heroin given to the undercover agents
on December 12th. The circumstantial and direct evidence
before the district court thus tended to directly implicate
Giraldo-Parra in drug trafficking.
The evidence tending to rebut the presumption was that
Giraldo-Parra had resided in Puerto Rico since around 1980,
had a positive employment history as an encyclopedia
salesman, and family ties to three children, his common law
wife, and half brother. In addition, Giraldo-Parra has no
criminal record and voluntarily surrendered to the
authorities after his counsel advised him to do so. While he
is licensed to carry a gun, he has no history of violence.
Various persons may be able to post property to secure bail.
Weighing against these factors was the evidence that his
relationship to his common law wife is unstable and that he
participated in threatening the cooperating defendant,
Rodriguez Alvarez. In view of the fact that the defendant is
not a citizen, the evidence against him is strong, and the
offenses with which he stands charged are serious, we agree
that the evidence of Giraldo-Parra's family and community
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ties does not appear strong enough to assure his appearance
at trial.8
Affirmed.
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8. As we conclude that the district court was justified in
concluding that Giraldo-Parra poses a risk of flight, we need
not consider whether the evidence met the "clear and
convincing" standard of proof on the issue of dangerousness.
See 18 U.S.C. 3142 (f). Cf. United States v. Jessup, 757
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F.2d at 380.
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