USCA1 Opinion
March 14, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1118
UNITED STATES,
Appellee,
v.
CHARLES R. ROGERS, JR.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Chief U.S. District Judge] _________________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
David N. Cicilline on brief for appellant. __________________
Sheldon Whitehouse, United States Attorney, and Lawrence D. ___________________ ____________
Gaynor, Assistant United States Attorney, on brief for appellee. ______
____________________
____________________
Per Curiam. This is an appeal from the denial of a __________
motion to revoke an order of pretrial detention. On December
14, 1994, defendant/appellant Charles Rogers, Jr. and
codefendants Ruben DeLeon, David Scialo, and Andrew J. Beagan
were charged in a two-count indictment with: (1) conspiring
to distribute and possess with intent to distribute more than
five kilograms of cocaine in violation of 21 U.S.C.
841(a)(1) and 846, and (2) attempting to possess with
intent to distribute said cocaine in violation of the
aforementioned statutes and 18 U.S.C. 2. After the
defendants were arraigned and a detention hearing was held on
December 16, 1994, a magistrate judge ordered that all the
defendants be detained pending trial. Rogers subsequently
filed a motion to revoke that detention order.1
The district court heard evidence, proffers, and
arguments on this motion on December 20 and 22, 1994. At the
conclusion of the proceedings the district judge issued an
oral ruling that denied Rogers' motion to revoke the
detention order on the ground that Rogers posed a risk of
flight. Five days later the magistrate judge issued a form
pretrial detention order which noted, inter alia, that clear _____ ____
and convincing evidence had established that Rogers
____________________
1. While the magistrate judge ordered that all the
defendants be detained at the conclusion of the detention
hearing on December 16, 1994, he did not issue a written
order at that time. The transcript of the proceedings before
the magistrate judge is not before us.
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participated in a conspiracy to distribute cocaine, that he
faced at least 10 years' imprisonment if convicted, and that
he had not rebutted the presumption that he posed a risk of
flight or danger to the community under 18 U.S.C. 3142(e).2
On January 17, 1995, the district court entered a one-
sentence order denying Rogers' motion to revoke the
magistrate judge's detention order. This appeal followed.
For the reasons set out below, we affirm.
I. BACKGROUND _____________
The record discloses that the defendants were arrested
following a "sting" arranged by agents of the Federal Bureau
of Investigation (FBI) and the Providence Police
Department.3 On November 16, 1994, undercover Providence
____________________
2. 18 U.S.C. 3142(e) governs detention of defendants
pending trial. The statute provides, in pertinent 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.),....
3. The events that lead to Rogers' arrest are detailed in
the "Alternative Findings" appended to the magistrate judge's
detention order. As the district judge left these findings
undisturbed in denying Rogers' motion to revoke, we rely on
these findings and the government's proffer at the district
court's 12/20/94 hearing in describing the evidence of the
underlying offense.
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Police Detective Fred Rocha met defendant Andrew Beagan in
Providence. Beagan indicated that he wanted to purchase
cocaine. Rocha agreed to sell Beagan 25 kilograms of cocaine
at a price of $13,500 per kilogram. Rocha told Beagan he
would get the cocaine around the end of the month.
On December 8, 1994, Rocha told Beagan that he had the
cocaine. They agreed that Rocha would be paid in large bills
and that the transaction would occur on December 12, 1994.
They further agreed that the transaction would be done in two
stages. First, Beagan and Rocha would meet and Beagan would
show Rocha the money. Rocha would then call the people that
Beagan was working for by cellular telephone and tell them
where they could retrieve the cocaine. Beagan's people would
then drive to the site of the cocaine and, upon verifying
that the drug was there, call Beagan and tell him to release
the money to Rocha.
At approximately 10:30 a.m. on December 12th Rocha met
Beagan to finalize the plans for the trade. They agreed that
the transaction would take place at about 4:00 p.m. Ten
kilograms would be delivered first, and if Beagan's people
were satisfied with the drug's quality, the remaining fifteen
kilograms would be exchanged within an hour. Beagan told
Rocha that he had a rental car that he wanted to use as the
"drop car" for the cocaine. Rocha agreed. Around 1:30 p.m.
Rocha had a telephone conversation with Beagan. Rocha told
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Beagan to bring the "drop car" to the parking lot at
University Heights in Providence. Beagan agreed and informed
Rocha that the "drop car" was a white Taurus with plate #VU-
690. Rocha told Beagan to leave the keys in the visor.
Shortly thereafter Rocha and another undercover officer found
the Taurus in the University Heights parking lot. The Taurus
was driven to another location where its trunk was loaded
with a mixture of cereal and plaster designed to resemble
cocaine. The Taurus was then parked in a lot next to a
baseball field on Gano Street in Providence. The agent who
left it there put its keys on the visor.
At approximately 3:45 p.m. Detective Rocha telephoned
Beagan from a hotel parking lot in Providence. They agreed
that Beagan would meet him there with the money for the
cocaine. Rocha told Beagan to tell the person who was going
to pick up the cocaine to wait at another restaurant for
instructions. Beagan arrived approximately fifteen minutes
later with codefendant DeLeon. DeLeon exited his vehicle (a
Geo) and entered Rocha's vehicle with a leather bag. He
opened the bag and showed Rocha bundles of five and ten
thousand dollars.4 DeLeon then returned to his Geo and Rocha
began to give Beagan directions to the Taurus. At that point
Beagan got a telephone call on the cellular telephone that
____________________
4. It was later determined that the bag contained
$145,000.00.
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was in the Geo. Beagan then asked Rocha to direct the person
on the other end of the line to the Taurus. Rocha spoke on
Beagan's cellular telephone and told the person on the other
end of the line to enter the parking lot near the
intersection of Power and Gano Streets.5 Rocha then sat
waiting in his car with DeLeon. Minutes later FBI and
Providence Police agents saw a Toyota with three occupants
enter the parking lot where the Taurus had been planted. The
Toyota drove up to the Taurus. Defendant David Scialo exited
the Toyota and entered the Taurus, taking its keys from the
visor. The Toyota and the Taurus were then driven towards
Gano Street. As these vehicles were departing defendant
Rogers was seen driving the Toyota and holding a cellular
telephone to his ear. The agents then stopped the vehicles
and arrested Rogers, Scialo, and Juan Toribio (the third
occupant of the Toyota).6 Beagan and DeLeon were arrested
at the hotel where they had met Rocha. Further investigation
later disclosed that defendant Scialo had rented the Taurus
that had been used as the "drop car" on December 2, 1994.
Rogers was listed as a second driver on the rental agreement.
At the district court's hearing on Rogers' motion to
revoke the detention order Rogers presented evidence of his
____________________
5. The government proffered that the person on the other end
of the line was referred to as "Chuck", asserting that Rocha
spoke to the defendant, Charles Rogers.
6. The government elected not to prosecute Toribio.
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strong family and community ties. Thus, the record discloses
that Rogers is thirty years old and has been a lifelong
resident of Rhode Island. While Rogers never married, he is
the father of a ten-year old daughter. Rogers' uncle, Gary
Saucier, testified that Rogers has a "very loving and caring
relationship" with his daughter. Saucier was willing to post
his residence as security and to supervise Rogers if he was
released.7 Defense counsel also proffered that Rogers had
no prior convictions although certain state charges that had
been pending against Rogers had been dismissed that
morning.8 Defense counsel maintained that the evidence
against Rogers was weak because the government had shown
simply that Rogers had dropped off another defendant
(Scialo) and immediately departed, it had not adduced any
evidence that Rogers had any knowledge of a drug deal.
Defense counsel argued that given the weak state of the
evidence, the absence of prior convictions, Rogers'
significant family ties and lack of resources to flee,
pretrial release with conditions was justified.
____________________
7. Rogers offered to submit to numerous conditions if
released, including third-party custody with his aunt and
uncle and electronic monitoring. He also offered to post a
surety bond secured by his uncle's real estate.
8. The state charges included conspiracy to violate a
controlled substances act, possession with intent to
distribute marijuana, delivery of over one ounce of cocaine,
possession with intent to distribute cocaine, and a firearms
offense.
-8-
In contrast, the prosecutor argued that the case against
Rogers was strong, stressing that the evidence would show
that Rogers was the person that agent Rocha spoke to on the
cellular telephone when he gave directions to the Taurus and
that Rogers was seen holding a cellular telephone to his ear
as he drove the Toyota away from the pick-up site (thus
suggesting that Rogers had been communicating with the other
alleged conspirators by cellular telephone). The government
also submitted a pretrial services report that recommended
that Rogers be detained pending trial because his record
raised concerns about his reliability to appear in court.
The report indicated that Rogers had violated the conditions
of his release on the aforementioned state drug charges since
he had not reported to the Rhode Island State Bail
Information/Supervision Unit (the "bail supervision unit")
since July 1994. The report further indicated that the bail
supervision unit sent Rogers three separate notices of his
violation and that he had not responded to any of the
notices.9 The pretrial services report concluded that
____________________
9. The notices were sent to Rogers on September 1, 1994,
November 16, 1994, and December 13, 1994. The first two
notices were sent to Rogers at 361 Williams Street,
Providence, the address that Rogers reported as his residence
for the past 18-24 months when he was interviewed by the
federal probation officer on December 13, 1994. The last
notice was sent to a previous address that Rogers had given
to the state bail supervision unit. Each notice stated:
As part of your bail conditions, you are to be
in contact with the Bail Information Unit office.
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Rogers had demonstrated an unwillingness to comply with the
state court's bail release conditions.10
The district judge indicated that the information in the
pretrial services report concerning Rogers' failure to
respond to the bail supervision unit's notices was important
evidence that weighed against pretrial release. Defense
counsel maintained that Rogers had never received any of the
notices due to a miscommunication occasioned by the closing
of Rhode Island's bail supervision unit. The court recessed
the hearing to allow defense counsel to investigate the
matter further. When the hearing reconvened on December 22,
1994, defense counsel reported that Rogers had lived at three
different addresses over the last two-and-a-half years and
that his current address was 365 Williams Street (not the 361 _ _
Williams Street address that Rogers had given to the federal
probation officer and the Rhode Island bail supervision
unit). Defense counsel maintained that Rogers simply did not
receive the notices, that he otherwise had a good record of
____________________
Since we have not heard from you, you may be in
violation of your bail conditions.
Please call us immediately at 277-3827. If we do
not hear from you a warrant will be issued for your
arrest.
10. The report also indicated that although Rogers had
formerly worked for his father's plumbing business, he had
been unemployed for approximately nine months when he was
arrested on the instant federal charges.
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complying with the requirements of his state probation, and
that Rogers was an excellent candidate for pretrial release.
At the conclusion of the hearing on December 22, 1994
the district judge announced that there was evidence that
Rogers was involved in the purchase of approximately $140,000
worth of cocaine, that the procedures used to accomplish the
exchange were professional in nature, and that Rogers
participated in picking up the cocaine. The judge further
noted that Rogers was subject to a mandatory 10-year sentence
if convicted and that it was not likely to have been just
happenstance that Rogers was driving the Toyota from which
the pick-up man alighted. The judge specifically found that
Rogers was given notice that a warrant would issue for his
arrest if he did not report to the state bail supervision
unit. While Rogers claimed that he did not receive these
notices, the district judge found that either was not true or
Rogers was not living at the address he had given to the
probation department.11 The judge denied Rogers' motion,
indicating that, "there is the possibility of flight here."
____________________
11. We note that it appears to be undisputed that Rogers did
not receive the third, 12/13/94, notice from the bail
supervision unit as he was arrested and detained for the
federal offenses on December 12, 1994. However, the first
two notices were sent to 361 Williams Street, the address
which Rogers had identified as his. It is also undisputed
that Rogers' father and step-mother reside at 361 Williams
Street.
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II. DISCUSSION ______________
On appeal, Rogers argues that the district judge placed
too much emphasis on the pretrial services report's
information concerning his failure to respond to the Rhode
Island bail supervision unit's notices. He reiterates his
contention that the case against him is weak because the
government offered no evidence that he knowingly participated
in a plan to purchase cocaine. Rogers maintains that his
strong community ties and other personal characteristics
establish that he does not pose a risk of flight or danger to
the community.
We afford a pretrial detention order independent review
with deference to the findings of the district court. See ___
United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990). ______ ______ _______
This is "an intermediate level of scrutiny, more rigorous
than the abuse of discretion or clear-error standards, but
stopping short of de novo or plenary review." United States __ ____ _____________
v. Tortora, 942 F.2d 880, 883 (1st Cir. 1990). We determine _______
whether "due attention was given to all the statutory factors
[governing pretrial release under 18 U.S.C. 3142(g) and] ...
shall give such deference as we think the care and
consideration manifested by the magistrate [judge] and
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district court warrant." United States v. O'Brien, 895 F.2d _____________ _______
at 816.12
Having reviewed the record thoroughly, we decline to
disturb the district court's ruling.13 The indictment
established probable cause to believe that Rogers had
violated the Controlled Substances Act and was punishable by
a maximum of at least 10 years' imprisonment. See, e.g., ___ ____
United States v. Vargas, 804 F.2d 157, 163 (1st Cir. 1986). _____________ ______
Thus, under 18 U.S.C. 3142(e), the district court was
required to presume that no condition(s) would reasonably
____________________
12. Under 18 U.S.C. 3142(g), district courts determining
whether pretrial release is warranted must consider such
factors as the nature of the offense charged, the weight of
the evidence against the defendant, the defendant's personal
history and characteristics (including the defendant's family
and community ties, employment, financial resources, criminal
history, and record of court appearances), whether the
defendant was on probation or other release pending trial at
the time of his arrest, and the nature of any danger that
would be posed by the defendant's release.
13. We note that the district judge only issued oral
findings and did not reduce his decision to writing as
required by 18 U.S.C. 3142(i)("In a detention order issued
pursuant to ... subsection (e), the judicial officer shall -
(1) include written findings of fact and a written statement
of the reasons for the detention;..."). In the past we have
regarded this as a basis for remand. See, e.g., United ___ ____ ______
States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989)(remanding ______ ____
where detention order contained only conclusory statement
that defendant failed to rebut 18 U.S.C. 3142(e)
presumption). However, as of December 1, 1994, Fed. R. App.
P. 9(a) allows district courts to, "state in writing, or __
orally on the record, the reasons for an order regarding ______________________
[pretrial] release or detention of a defendant in a criminal
case." (emphasis supplied). As the district judge stated his
reasons for detaining Rogers orally on the record, we are
able to conduct the necessary review.
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assure Rogers' appearance at trial or the safety of the
community absent sufficient rebuttal evidence from Rogers.
Here, Rogers submitted evidence that he had strong ties to
Rhode Island, no significant criminal record, and a
willingness to submit to various conditions of release.
While Rogers' evidence satisfied his burden of production,
see, e.g., United States v. Jessup, 757 F.2d 378, 384 (1st ___ ____ _____________ ______
Cir. 1985)(defendant need only produce "some evidence" to
rebut presumption), the presumption did not simply disappear
upon the presentation of Rogers' evidence. See, e.g., United ___ ____ ______
States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988). ______ ____________
Rather, the district judge was required to consider the
congressional presumption that drug traffickers generally
pose special risks of flight along with the other factors
outlined in 18 U.S.C. 3142(g) in determining whether
pretrial detention was warranted. Id. ___
The judge's oral findings indicate that he gave due
consideration to the nature of the offense charged, the
weight of the evidence against Rogers, and Rogers' personal
history and characteristics when he determined that the
government had carried its burden of persuasion that Rogers
posed a risk of flight. In particular, the judge found that
the government had demonstrated that Rogers participated in a
professional conspiracy to purchase a large amount of cocaine
that was worth a substantial sum of money. Contrary to
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Rogers' contention, we do not agree that the evidence against
Rogers was weak. The government proffered that Rogers was
the person to whom agent Rocha spoke when he gave directions
to the Taurus that purportedly contained the cocaine.
Minutes after Rocha gave these directions, Rogers was seen
dropping off defendant Scialo at the pick-up site and holding
a cellular telephone to his ear as he drove away followed by
the Taurus. The fact that Rogers was seen with a cellular
telephone, the mode of communication that Beagan and Rocha
agreed upon when they hatched the scheme to transfer the
drugs and money at separate locations, further suggests that
Rogers was in on the deal. While this evidence is admittedly
circumstantial, "criminals rarely welcome innocent persons as
witnesses to serious crimes ...." United States v. Ortiz, _____________ _____
966 F.2d 707, 712 (1st Cir. 1992), cert. denied, 113 S. Ct. _____ ______
1005 (1993). Thus, we think that the district judge
reasonably inferred that this combination of events indicated
that Rogers was a knowing participant in a conspiracy to
purchase cocaine. See United States v. Sanchez, 917 F.2d ___ ______________ _______
607, 610 (1st Cir. 1990), cert. denied, 499 U.S. 977 (1991), _____ ______
(conspiracy may be inferred from a development and
collocation of circumstances). We also reject Rogers'
contention that the district judge erred by placing too much
weight on the information in the pretrial services report
concerning Rogers' failure to respond to the Rhode Island
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bail supervision unit's notices. The record discloses that
two of the notices were sent to the address that Rogers
identified as his home (i.e., 361 Williams Street) when he
was interviewed by the federal probation officer on December
13, 1994.14 When Rogers' failure to respond to these
notices became an issue, defense counsel proffered that
Rogers resided at a different address (i.e., 365 Williams
Street) and that he never received the notices. But where
Rogers had reported that his address was 361 Williams Street
only one week earlier, we think that the district judge was
justifiably skeptical of Rogers' claim that he did not
receive the notices that had been sent to that address in
September and November 1994.15 Moreover, although Rogers
proffered that he lived at 365 Williams Street, there was no
evidence that he ever gave the bail supervision unit this
address. Thus, we think that the judge's conclusion that
Rogers either received the state's notices and failed to
respond to them, or failed to report his correct address to
____________________
14. An addendum to the pretrial services report further
indicates that Rogers had given the same address to Rhode
Island's bail supervision unit.
15. The pretrial services report indicates that Rogers
reported that he had resided with his father and step-mother
at 361 Williams Street for approximately two years, and that
Rogers' father corroborated this assertion. If that were
true, Rogers should have received the notices that were sent
to him in September and November of 1994.
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the bail supervision unit, was reasonable.16 In any event,
the record indicates that the district judge had good cause
to doubt Rogers' future compliance with any conditions of
release that might be imposed.
It is true that there was no direct evidence that Rogers
participated in the negotiations for the purchase of cocaine
between Rocha and Beagan. However, given the significant
circumstantial evidence that Rogers participated in the
conspiracy, the evidence that he had violated the conditions
of release with respect to previous state charges, and the
fact that Rogers faces a substantial penalty if convicted, we
agree with the district court's conclusion that the
presumption that Rogers presents a risk of flight has not
been overcome. This case is similar to United States v. ______________
Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991). There we ______
affirmed the detention of a defendant who, like Rogers, had
no significant prior convictions and had not participated in
the negotiations for the purchase of drugs. Dillon, however,
had appeared with a substantial sum of money ($200,000) at
the time of the illicit exchange. Thus, he appeared "to be
part of an organization with significant financial
____________________
16. To be sure, we recognize that the state charges that
lead to the imposition of these reporting requirements were
ultimately dismissed in December 1994. However, the pretrial
services report indicates that Rogers stopped reporting to
the bail supervision unit without justification in July 1994,
five months before the charges were dismissed.
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resources[,]" i.e., the type of drug organization that
Congress had in mind when it enacted 18 U.S.C. 3142(e). See ___
United States v. Dillon, 938 F.2d at 1416; United States v. _____________ ______ ______________
Jessup, 757 F.2d at 385-86. While Rogers was not the money ______
man, he nonetheless appears to be affiliated with an
organization that was able to finance a purchase of $140,000
worth of cocaine. Such an organization could no doubt
finance Rogers' flight. In short, the record as a whole
indicates that Rogers failed to adduce sufficient evidence to
rebut the presumption that he poses a risk of flight.17
Accordingly, the district court's order denying Rogers'
motion to revoke the order of pretrial detention is affirmed. _________
____________________
17. As the district court supportably rested its decision on
risk of flight grounds, we need not consider the issue of
dangerousness. Cf. United States v. Jessup, 757 F.2d at 380. ___ _____________ ______
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