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USCA1 Opinion
February 10, 1992
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No. 91-2208
UNITED STATES,
Appellee,
v.
EDGARDO PUBILL RIVERA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Jose Antonio (ABI) Lugo on brief for appellant.
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Robert S. Mueller, III, Assistant Attorney General, Mary Lee
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Warren, Chief Narcotic and Dangerous Drug Section, William H.
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Kenety and Daniel F. Lopez-Romo, United States Attorney, on brief
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for appellee.
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Per Curiam. Appellant, Edgardo Pubill-Rivera, appeals
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from the decision of the United States District Court for the
District of Puerto Rico denying his request for release pending
trial.
BACKGROUND
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Appellant was indicted, along with over 25 other
persons, on charges of conspiring to possess cocaine with the
intent to distribute it and with aiding and abetting the
possession of cocaine with the intent to distribute it. The
amount of cocaine involved was over 10,000 kilograms. According
to the government, appellant played a leading role in this large
drug trafficking conspiracy. A detention hearing was held on
September 20, 1991. The hearing revealed the following evidence.
Appellant has seven children, several of whom he
supports. He has lived with his common-law wife for the past
eight years. At the time of his arrest, appellant was employed
at the gas station owned by his father. He was receiving
approximately $2,500 per month as salary. Appellant owns the
home in which his father lives; it is worth approximately
$80,000. Appellant refused to divulge the existence of other
financial assets to pretrial services. Appellant stated that
friends and family were willing to post eight parcels of real
estate worth over $440,000 as security for bail.
As for appellant's past criminal activity, he has three
prior narcotics convictions. Upon his first conviction,
appellant was sentenced to probation. However, probation
subsequently was revoked due to a violation of the terms of this
release. Nonetheless, appellant averred that he had been
released on bail in all three cases and always had appeared in
court when required.
The government cross-examined appellant's sister. In
addition to the home in which their father lives, appellant's
sister stated that she, appellant and their father own a
laundromat and that appellant owns a second home. She stated
that she had, on one occasion, purchased a bank check for $8,000
or $9,000 for her brother; she did not know how her brother had
obtained the money for this check. The government also proffered
the following evidence. Although appellant's tax return showed
a yearly income of only $24,000, appellant owned assets that
indicated unexplained sources of income. These assets included a
condominium, a $68,000 speedboat apparently paid for in cash,
$195,000 in real estate equity and three bank accounts.
Appellant has a passport and has travelled outside of the United
States. In addition, when he was arrested he possessed two fake
drivers' licenses. Finally, under the Sentencing Guidelines,
appellant probably would be subject to a minimum sentence of 25
years.
The magistrate judge before whom the hearing was held
ordered appellant detained prior to trial. He considered the
magnitude of the drug enterprise of which appellant was a part
and the length of the minimum sentence to which appellant could
be exposed. Based on these factors, the magistrate judge
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concluded that appellant could not be trusted to follow any
conditions of release. In addition to finding that appellant
would pose a danger to the community if released, the magistrate
judge determined that the seriousness of the charges appellant
faces, along with the unexplained sources of income, provided
appellant with the incentive to flee. The district court judge
affirmed the detention order, rejecting appellant's argument that
18 U.S.C. 3142(g) prevented the magistrate judge from
considering defendant's sources of income.
DISCUSSION
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Based upon the transcript of the detention hearing, the
district court's findings and the parties' briefs, we now
consider the merits of the appeal. A special standard of review
applies to pretrial detention orders:
We approach our task mindful of our
obligation to afford independent review,
tempered by a degree of deference to the
determinations made below. Recognizing that
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.
Hence, independent review represents 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.
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United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir.
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1990) (citations omitted).
The grand jury indictment provided probable cause
to believe that appellant had committed an offense for which
a maximum term of ten years or more is prescribed in the
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Controlled Substances Act, 21 U.S.C. 801 et. seq. See
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United States v. Vargas, 804 F.2d 157, 163 (1st Cir. 1986)
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(per curiam). Thus, the statutory presumption contained in
18 U.S.C. 3142(e) became applicable. This provides that
"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." To
rebut this presumption, appellant need only produce "some
evidence" to show that "what is true in general is not true
in [his] particular case . . . ." United States v. Jessup,
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757 F.2d 378, 384 (1st Cir. 1985). This is a burden of
production, not persuasion. Id. at 380-81. However, even
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assuming appellant successfully rebuts the presumption by
producing "some evidence," the bubble does not "burst." Id.
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at 383. The burden of persuasion remains on the government,
but the rebutted presumption retains evidentiary force: it
becomes a factor to be considered in addition to the other
relevant factors in 3142(g). United States v. Palmer-
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Contreras, 835 F.2d 15, 18 (1st Cir. 1987) (per curiam).
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On the facts before us we agree with the district
court that a detention order was justified under the terms of
the statute. Congress has made it clear that "the risk that
a defendant will continue to engage in drug trafficking
constitutes a danger to the 'safety of any other person or
the community.'" S. Rep. No. 98-225, 98th Congress, 2d Sess.
13 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3196. Here,
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there is the risk that appellant might return to the
narcotics trade if released on bail; appellant's past
convictions did not prevent him from continuing to engage in
drug trafficking. Of relevance is the fact that he violated
the terms of his probation which then was revoked. See,
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e.g., United States v. Williams, 753 F.2d 329, 335 (4th Cir.
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1985) (finding evidence that defendants would "continue to be
involved in narcotics if released on bail" based upon fact
that they had done so despite presence of prior convictions
and parole supervision); United States v. Dominquez, 629 F.
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Supp. 701 (N.D. Ind. 1986) (detention on grounds of danger to
community ordered where defendant drug suppliers continued to
engage in drug-related activities even after government
intervention).
Appellant's evidence did not significantly negate
the risk of danger established by the government. Indeed,
most of his evidence did not relate directly to the issue of
the "safety of community." Rather, the evidence of the
number of persons willing to aid appellant in securing bail
related to his community ties and the risk of flight
question. As Congress has pointed out, community ties have
no correlation with the question of the safety of the
community. See S. Rep. at 24, reprinted in 1984 U.S.C.C.A.N.
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at 3207.
In addition, the evidence concerning the
undisclosed financial assets belonging to appellant and his
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apparent access to large amounts of cash supports the
district court's finding that appellant presents a risk of
flight. Indeed, appellant has a passport and the apparent
wherewithal to obtain false identification. Finally,
appellant appears to belong to a large narcotics trafficking
organization; further, he is not just a "mule." Compare
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United States v. Palmer-Contreras, 835 F.2d at 18 (despite
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the fact that defendants were only mules, detention proper on
risk of flight grounds where organization for which
defendants worked appeared to have significant financial
resources to assist flight).
In conclusion, the seriousness of the charges
against appellant, the stiff sentence he faces if convicted,
the nature and size of the criminal enterprise to which he
allegedly belongs, his apparent access to large amounts of
cash and the fact that he continued to engage in drug-
trafficking after three state drug convictions provide a
solid foundation on which to base a detention order.
The order of the district court is affirmed.
The motion to dispense with oral argument is denied
as moot.
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Document Info
Docket Number： 91-2208
Filed Date： 2/10/1992
Precedential Status： Precedential
Modified Date： 9/21/2015