United States v. Arroyo-Reyes

August 15, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1535
UNITED STATES,
Appellee,
v.
JUAN CARLOS ARROYO-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Luis F. Abreu Elias on brief for appellant.
Guillermo Gil, United States Attorney, and Miguel A.
Pereira, Assistant U.S. Attorney, on brief for appellee.
Per Curiam. Defendant Juan Carlos Arroyo-Reyes appeals
from a district court order denying him bail. For the
following reasons, we affirm.
I.
On March 9, 1994, a federal grand jury returned a five
count indictment charging defendant with conspiracy to
distribute at least fifty grams of cocaine base, five
kilograms of cocaine, and one kilogram of heroin, see 21
U.S.C. 841(a)(1), 846; continuing criminal enterprise, see
21 U.S.C. 848(a)-(b); and using and carrying firearms in
relation to a drug trafficking offense, see 18 U.S.C.
924(c)(1). The indictment further charged, as overt acts,
that defendant supervised sales of controlled substances; and
that he and his co-conspirators used weapons to protect drug
operations, to carry out carjackings, and to intimidate
honest citizens who might report on their activities to law
enforcement officials. Following defendant's arrest on these
charges, a detention hearing was held before a magistrate
judge. The magistrate decided to detain defendant without
bail pending trial on grounds of risk-of-flight. A de novo
hearing was subsequently held before the district judge on
April 22, 1994.
At the detention hearings, F.B.I. Special Agent Todd
Polley testified for the government. Polley testified that
based on information provided him by confidential sources and
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the local police precinct, the defendant is the leader of an
approximately twenty-six member gang which operates a drug
point in Toa Baja, Puerto Rico, and which uses weapons to
protect its members and its stashes of money from rival
gangs. Polley and other FBI agents conducted surveillance of
the alleged drug point and observed individuals carrying
weapons, communicating by radio equipment, and conducting
what appeared to be drug transactions. On one occasion,
agents observed over one hundred transactions take place
within a three hour period. A controlled buy confirmed that
drugs were being sold. Agent Polley saw defendant at the
drug point on a number of occasions, and observed that he
appeared to be followed by body guards.
Polley further testified that a search of defendant's
home revealed over $14,000 cash, a money counter, ziplock
bags similar to those used to package drugs, and radio
transmission equipment similar to that used by the gang
members to communicate with each other. Tape recordings of
overheard radio communications, played at the hearings,
included references by gang members to weapons, drugs and
carjackings. On one of these tapes, gang members discussed
freshly spray-painted threats designed to intimidate
community members perceived to be "snitches" or "stool
pigeons." Other evidence included a photograph which
depicted defendant, roughly fifteen feet away from the drug
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point, wearing a cellular phone on his hip pocket and
accompanied by two individuals, one of whom was carrying a
pistol. Another photograph depicted defendant transferring a
packet from the drug point to a motor vehicle.1 Finally,
the government proffered testimony that on September 6, 1993,
defendant and another individual were arrested in Bayamon,
Puerto Rico with $30,598 cash, two kilograms of cocaine, and
two loaded weapons.2 As a result of this arrest, defendant
faces charges in the Superior Court of Puerto Rico.
The defendant is twenty years old and a life-long
resident of Puerto Rico. At the time of his arrest, he was
living with his grandfather. Defendant proffered witnesses
who would testify, among other things, to his strong family
and community ties; his positive employment history,
including work as an electronic technician and a laborer in
the construction industry; his religious upbringing; and his
good reputation in the community. One witness, a former
employer, would have testified that defendant was a "trusted
employee," and that he was willing to employ defendant again
and to provide employment records to the court. Another
witness would have testified that defendant had studied
electronics and had a part-time job in his home fixing
1. The contents of the packet is unknown.
2. Defense counsel contested this proffered testimony,
stating that defendant was merely a passenger in a motor
vehicle in which drugs and weapons were found.
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electronic equipment. Defendant's grandfather offered to
post his home (worth $44,000) as bond, as well as to serve as
a third-party custodian if defendant were released.3
The district court affirmed the magistrate judge's
detention order on the grounds that defendant is both a risk
of flight and a danger to the community. The court first
observed that where, as here, a defendant has been indicted
for a drug offense punishable by ten or more years under 21
U.S.C. 801 et seq., as well as a firearm offense under 18
U.S.C. 924(c)(1), a "rebuttable presumption" arises that no
condition or combination of conditions will reasonably assure
his appearance as required and the safety of the community.
See 18 U.S.C. 3142(e); United States v. Vargas, 804 F.2d
157, 163 (1st Cir. 1986) (per curiam) (indictment is
sufficient to establish probable cause for purposes of
triggering the rebuttable presumption in 3142(e)). The
court then stated:
Mindful of the fact that the presumption shifts to
the defendant the burden of production, not the
burden of persuasion, the defendant's proffer of
evidence is not enough to grant him bail. This
record contains strong indicia of defendant's
involvement in a drugs and firearms conspiracy and
criminal enterprise. The testimony of F.B.I.
Special Agent Todd Polley, as well as the taped
recordings and photo evidence, so confirm. The
defendant operated what appears to be a large drug
3. The transcript of the de novo bail hearing also indicates
that defendant submitted to the court a letter signed by
seventy-seven community members. This letter was not
presented to us on appeal.
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point backed up by a twenty-plus member
organization under his direction. Large amounts of
cash were seized. The presence of cash suggests
that fleeing is easier to achieve. Money buys
access to boats and private airplanes to a
multitude of neighboring islands, from where
further escape is quite easy. Furthermore, the
obvious violent nature of the drug-related
activities and the use of firearms and armed
carjacking demonstrate that the safety of the
community is compromised. The presumption remains
that no condition or combination of conditions will
reasonably assure appearance and the safety of the
community.
II.
In pretrial detention cases, we employ "independent
review, tempered by a degree of deference to the
determinations made below." United States v. Tortora, 922
F.2d 880, 882 (1st Cir. 1990). As a practical matter, we
defer greatly to the district court's factual findings. Id.
at 882-83. We also carefully scrutinize the district court's
reasons, considering whether "due attention was given to all
the statutory factors." United States v. O'Brien, 895 F.2d
810, 816 (1st Cir. 1990). These factors are: (1) the nature
and circumstances of the offense charged; (2) the weight of
the evidence; (3) the history and characteristics of the
accused, including past conduct; and (4) the nature and
seriousness of the danger posed by the accused's release.
See 18 U.S.C. 3142(g). We give such deference to the
court's conclusions "as we think the care and consideration
manifested by the . . . district court warrant." O'Brien,
895 F.2d at 816.
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Defendant attacks the reasoning of the district court.
First, he contends that the district court impermissibly
placed the burden on him to prove that pre-trial release was
warranted. Second, defendant argues that the district court
ignored some of the statutory factors relevant to release and
improperly weighed those factors it did consider. In
particular, defendant contends that the district court relied
almost solely on the first factor, the nature of the offense,
and failed to assess the weight of the evidence (which, he
suggests, is weak), attached too little weight to his
proffered evidence regarding the history and personal
characteristics of the defendant, and failed to articulate
any danger that defendant poses to the community.
The government unquestionably bears the burden of proof
at a pretrial detention hearing.4 Here, the government was
aided by the presumption, set forth in 18 U.S.C. 3142(e),
that no conditions would reasonably assure defendant's
appearance and the safety of the community. The district
court's order makes it plain that it was fully cognizant that
this presumption merely shifts to the defendant the burden of
production, not the burden of persuasion. See United States
v. Jessup, 757 F.2d 378, 381 (1st Cir. 1985). Contrary to
4. The government must demonstrate, by clear and convincing
evidence, that the defendant's release poses a risk of danger
to the community; or, by a preponderance of the evidence,
that there is a risk of flight. See United States v.
Patriarca, 948 F.2d 789, 792-93 (1st Cir. 1991).
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the defendant's suggestion, we do not interpret the court's
statement that his "proffer of evidence is not enough to
grant him bail" to mean that the district court lost sight of
who had the burden of proof. Rather, read in context, this
remark merely indicates that the court duly considered
defendant's proffer but ultimately concluded that, even in
light of it, there was sufficient evidence to detain him.
We add that the presumption reflects Congress's findings
that drug traffickers often have the resources and foreign
contacts to escape to other countries, and that they present
a special risk of pre-trial recidivism. See United States v.
Palmer-Contreras, 835 F.2d 15, 17 (1st Cir. 1987) (per
curiam); United States v. Williams, 753 F.2d 329, 335 (4th
Cir. 1985). Even when, as here, a defendant has introduced
"some evidence" to rebut the presumption, the facts that gave
rise to the presumption retain evidentiary weight depending
upon how closely defendant's case resembles the highly
lucrative drug operations at the center of congressional
concern. See Palmer-Contreras, 835 F.2d at 18. Given the
size of the organization here, its apparent heavy volume of
business, and the evidence of cash resources, the district
court appropriately gave continuing weight to the
presumption.5
5. Contrary to defendant's suggestion, we do not construe
the district court's statement that the presumption "remains"
to mean that it gave conclusive weight to it.
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We also reject defendant's argument that the district
court did not properly consider all of the relevant statutory
factors. First, we note that defendant errs in stating that
the district court failed to assess the weight of the
evidence against him. To the contrary, the district court
found that the record contains "strong indicia" of his
involvement "in a drug and firearms conspiracy and criminal
enterprise." We are similarly persuaded that the evidence
linking him to these offenses is strong. Although defendant
complains that some of the evidence against him is hearsay,
the government may utilize reliable hearsay at a detention
hearing. See United States v. Acevedo-Ramos, 755 F.2d 203,
207 (1st Cir. 1985). Here, the second-hand reports that
defendant is connected to, and indeed the leader of, a drug
gang are corroborated by the observations of FBI agents, the
photographs, the tape recordings, and the evidence seized
from defendant's home.
Second, with respect to defendant's personal history and
characteristics, we observe, as did the district court, that
he has had "prior brushes with the law." Most relevantly, at
the time of the current offense, he was on release pending
trial in state court for drug and firearm offenses. Congress
has made it clear that an "especially significant" danger to
the community is the risk that the drug network will continue
to function while defendant awaits trial. See United States
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v. Portes, 786 F.2d 758, 765 (7th Cir. 1985). Given
defendant's apparent behavior in this regard, as well as
evidence of the violent nature of the drug-related activities
and defendant's leadership role in the organization, the
district court, aided by the statutory presumption of
dangerousness, supportably found that he presented a risk to
the safety of the community if released on bail. Cf.
Williams, 753 F.2d at 335 (suggesting that there was clear
and convincing evidence that defendants were a danger to the
community where they had continued to be involved in drug
trafficking despite prior narcotics convictions).
Finally, although the question is closer, we are
persuaded that pretrial detention is also justified on risk-
of-flight grounds. On the one hand, defendant did proffer
evidence of strong family and community ties, offer security,
point to faithful appearances at prior court dates, and
propose a custodial arrangement. On the other hand, he faces
potentially severe penalties and apparently has access to
large amounts of cash. Thus, there is ample reason to
believe that he has the incentive and wherewithal to flee.
Moreover, it is as to close issues like this that the
deference we afford the district court's first hand
determination in bail cases comes into play.
Affirmed.
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