USCA1 Opinion
September 1, 1992
[NOT FOR PUBLICATION]
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No. 92-1837
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
LUIS ERNESTO IGLESIAS-BENITEZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, 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, Jose A. Quiles
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Espinosa, Senior Litigation Counsel, and Rosa Emilia Rodriguez
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Velez, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Luis Ernesto Iglesias Benitez appeals from
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a district court order affirming the magistrate-judge's
denial of bail pending trial. For the reasons that follow,
we affirm.
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On May 6, 1992, appellant was indicted on charges of
participating in a broad-based conspiracy to import and
distribute multi-kilo quantities of heroin. In particular,
defendant is charged in count two with agreeing to provide to
another defendant $150,000 for purchase of about 3.5
kilograms of heroin in Hong Kong, to be imported and
distributed in Puerto Rico. He is charged in count twelve,
in combination with others, with transporting about $310,000
in cash from the United States to a place outside the United
States in furtherance of drug trafficking. And he is charged
in counts thirteen and fourteen with importing and possessing
with intent to distribute, over two kilograms of heroin.
On motion by the prosecution for detention without bail,
a hearing was held before the magistrate-judge on June 4,
1992. The magistrate-judge heard from both prosecution and
defense counsel, accepting into evidence the testimony
proffered in defendant's thirteen page cross-motion for
release on bail. The magistrate-judge also accepted into
evidence the Pretrial Services Report, ultimately adopting it
by reference in his opinion.1
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1. Both parties accepted the procedure followed here without
objection and both relied on the Pretrial Services Report in
their arguments to the magistrate-judge and their briefs
here. The decision to rely on defendant's proffer, rather
than live testimony, was apparently based on the fact that
defendant's witnesses were unable to reach the courthouse due
Defendant is thirty years old, a native of Puerto Rico
and father of five children, at least three of whom he
supports. The witnesses he proffered included his mother,
brother-in-law, a former common-law wife and two current
common law wives. This evidence was accepted by the
magistrate as proof of strong family and community ties.
Defendant has steady employment as a grocer in a store he
apparently owns. He proposed a variety of conditions for his
release which he claimed would guarantee his appearance at
trial, including the posting of a $150,000 real estate bond,
a limited form of house arrest, supervision by a custodian,
and the wearing of an electronic bracelet.
Defendant said that he had known for several weeks prior
to his arrest that he was a target of the grand jury
investigation and was planning to surrender, but did not.
When he was arrested, two weeks after the indictment, he was
in possession of his murdered brother's handgun. He
allegedly explained to Drug Enforcement Administration
officials that he had been given the gun by a third person
after his brother's death. In any event, defendant did not
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to inclement weather. The hearing had previously been
postponed several times to allow defendant to obtain counsel
of his choice.
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have a license for the gun and also faces charges for illegal
possession of a firearm. See 18 U.S.C. 922(g)(1).2
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In addition to the federal charges against him,
defendant is currently on probation from a three-year
suspended sentence for a felony violation of a state
controlled-substances law (possession of marijuana). Another
recent state charge, statutory rape of a teenage girl, was
dismissed when defendant acknowledged paternity of the child
born to the victim. Finally, the prosecutor proffered that
defendant is currently the subject of a state investigation
into the murder of a former drug trafficker.
The magistrate-judge found that despite defendant's
strong family and community ties and lengthy residence in the
community, no condition or combination of conditions will
reasonably assure defendant's appearance and the safety of
the community. The district court affirmed the detention
order on June 19, 1992.
DISCUSSION
In pretrial detention cases we follow a special standard
of review: "independent review, tempered by a degree of
deference to the determinations made below." United States
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2. Defendant was indicted on July 22, 1992, for violation of
18 U.S.C. 922(g)(1) (unlawful for convicted felon to
knowingly receive a firearm which has been transported in
interstate commerce). The indictment identifies the handgun
as a .9mm Smith and Wesson semi-automatic pistol. See note
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3, infra.
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v. Tortora, 922 F.2d 880, 882 (1st Cir. 1990). We give
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"respect ... to the lower court's factual determinations,"
using "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." Id. at 883;
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United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990).
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The government bore the burden of proving that no
combination of conditions would reasonably assure defendant's
appearance or the safety of the community. United States v.
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Palmer-Contreras, 835 F.2d 15, 17 (1st Cir. 1987) (per
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curiam). To meet this burden the government was required to
offer clear and convincing evidence to prove dangerousness;
and a preponderance of the evidence to prove a risk of
flight. See United States v. Patriarca, 948 F.2d 789, 792-93
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(1st Cir. 1991). The grand jury indictment, however,
facially established probable cause to believe that appellant
had committed an offense for which a maximum penalty of ten
years or more is prescribed in the Controlled Substances Act,
21 U.S.C. 801 et. seq. and the Controlled Substances Import
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and Export Act, 21 U.S.C. 951 et. seq. See United States
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v. Vargas, 804 F.2d 157, 163 (1st Cir. 1986). Thus a
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rebuttable presumption arose that no "condition or
combination of conditions will reasonably assure" the
defendant's appearance and "the safety of any other person
and the community." 18 U.S.C. 3142(e), (f).
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Although defendant predicts that the actual sentence he
stands to receive under the Sentencing Guidelines will be as
short as eight years, the statutory presumption is triggered
solely by the seriousness and type of crime charged. United
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States v. Moss, 887 F.2d 333, 336-37 (1st Cir. 1989). While
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prediction of a lesser sentence may affect the weight
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assigned to the presumption, id. at 337, we agree with the
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magistrate-judge that defendant's analysis here is too
"ethereal" to diminish the presumption's force. Especially
in light of his prior state felony conviction, defendant is
actually faced with a possible minimum term of twenty years'
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imprisonment. See 21 U.S.C. 841(b)(1)(A)(i).
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Thus, to rebut the statutory presumption, defendant
needed "some evidence" to show that "what is true in general
is not true in [his] particular case...." United States v.
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Jessup, 757 F.2d 378, 384 (1st Cir. 1985). The burden is one
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of production, not persuasion. Id. at 380-81. When met, the
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presumption does not disappear entirely. Id. at 383. It
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retains evidentiary weight, the amount dependent on how
closely defendant's case resembles the congressional
"paradigm." Palmer-Contreras, 835 F.2d at 18; Jessup, 757
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F.2d at 383. Its remaining force is considered along with
the other relevant factors in 18 U.S.C. 3142(g). Palmer-
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Contreras, 835 F.2d at 18; O'Brien, 895 F.2d at 815.
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The evidence offeredby defendant did little to mitigate
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the risk of danger that informs the presumption. The charges
in the indictment place defendant squarely within the
paradigm of a drug trafficker who has "both the resources and
foreign contacts to escape to other countries with relative
ease in order to avoid prosecution for offenses punishable by
lengthy prison sentences". Senate Report No. 98-225, 98th
Congress, 2d Session at 20, reprinted in U.S. Code Cong. &
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Ad. News at 3203. Defendant is charged with agreeing to
supply large quantities of cash to finance drug purchases
abroad in connection with a multi-person conspiracy that
spanned at least two continents. In addition, defendant has
visible access to other resources which might finance a
flight from prosecution. He has owned a grocery business for
several years, an interest in real estate, several
automobiles, and enjoys "a comfortable financial condition"
according to the Pretrial Services Report. Compare Palmer-
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Contreras, 835 F.2d at 18 (although defendants were only
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"mules" and had no individual means of their own, detention
was proper on risk-of-flight grounds where narcotics
organization for which they worked appeared to have
significant financial resources to assist their flight).
Although defendant presented evidence of strong family
and community ties, offered security, and pointed to his
faithful appearance at all prior court and probation dates,
the government's case against defendant is strong and he
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faces potentially severe penalties. In light of defendant's
means and the motive to flee, a preponderance of the evidence
supported the magistrate-judge's decision that defendant
presented a risk of flight. See United States v. Dillon, 938
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F.2d 1412, 1416-17 (1st Cir. 1991) (court did not err in
denying bail on risk of flight grounds where evidence showed
defendant's connection to narcotics ring which could absorb
loss of $200,000 worth of security).
Moreover, defendant presented no evidence to rebut the
presumption that his release would pose a risk to the safety
of the community. Congress has made it clear that "the risk
that a defendant will continue to engage in drug trafficking
constitutes" a danger to the community. Senate Report at 13,
reprinted in U.S.C.C.A.N. at 3196. Defendant was already on
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probation from one felony conviction for a narcotics crime
when he was indicted here. Given the monetary incentives
involved and his demonstrated inclination to remain in the
drug trade despite government intervention, there is clear
and convincing evidence that he would continue were he
released on bail. See United States v. Williams, 753 F.2d
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329, 335 (4th Cir. 1985) (where finding that defendants, if
released, would continue to be involved with narcotics was
based on the fact that they had already done so "despite
convictions and parole supervision"). In addition,
defendant's possession of a gun at the time of his arrest
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adds weight and immediacy to the government's contention that
he presented a danger to the community.3
Finally, defendant's possession of a firearm despite his
status as a probationer, and his self-professed knowledge
that he was a target of the instant investigation, manifest a
flagrant disdain for the authority of the law. This
circumstance wholly undermines the value of defendant's
claimed willingness to submit to a variety of conditions
allegedly designed to assure his appearance in court. Most
of the conditions proposed "hinge on the defendant's good
faith compliance," and "can be too easily circumvented," a
flaw which "takes on great significance where ... little
about defendant ... suggests that good faith will be
forthcoming." Tortora, 922 F.2d at 886-87. In any event,
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the conditions defendant proposed, like the evidence he
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3. This conclusion is further buttressed by testimony given
at defendant's second detention hearing, following his
indictment for possession of the firearm. The magistrate-
judge's detention order there recites a government agent's
testimony that the gun was loaded when it, and additional
ammunition, were seized from defendant's control. Defendant
reportedly said he needed the gun because one Jose Alberto
Cosme had attempted to kill him. The agent testified to
information that defendant is a suspect in the murder of Jose
Alberto Cosme, and currently holds "a strong control on
narcotic distribution" in a public housing project. Though
we rarely consider materials which were not presented to the
court directly below, both parties have referred to the
subsequent indictment in their briefs, the magistrate-judge's
opinion there is part of the court's records, and defendant
had an opportunity to rebut this evidence at the second
hearing. Tortora, 922 F.2d at 884 n.5; O'Brien, 895 F.2d at
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814 & n.6; F.R.A.P. 9(a)(b). See United States v. Bayco, 774
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F.2d 516, 520 (1st Cir. 1985).
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presented of strong family and community ties, has "no
correlation with the question of the safety of the
community," Senate Report at 24, reprinted in U.S.C.C.A.N. at
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3207.
For the reasons stated, there is sufficient evidence to
conclude that no combination of conditions will reasonably
assure defendant's appearance and the safety of the
community. The decision below is affirmed.
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